
[Federal Register: June 28, 2011 (Volume 76, Number 124)]
[Rules and Regulations]               
[Page 37647-37649]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jn11-12]                         


[[Page 37647]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0511]
RIN 1625-AA00

 
Safety Zone; Missouri River From the Border Between Montana and 
North Dakota

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
specified waters of the Missouri River from the Montana and North 
Dakota border to the confluence with the Mississippi River, extending 
the entire width of the river. During enforcement periods, vessels must 
obtain Captain of the Port authorization to enter the safety zone. This 
temporary safety zone is needed to protect the general public, vessels 
and tows from destruction, and the levee system from destruction, loss 
or injury due to hazards associated with rising flood water. Operation 
in this zone is restricted unless specifically authorized by the 
Captain of the Port Sector Upper Mississippi River or a designated 
representative.

DATES: Effective Date: this rule is effective in the CFR from June 28, 
2011 until 11:59 p.m. CDT August 30, 2011, unless terminated earlier. 
This rule is effective with actual notice for purposes of enforcement 
beginning 12:01 a.m. CDT June 2, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0511 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0511 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. 
Documents will also be available for inspection or copying at Coast 
Guard Sector Upper Mississippi River, 1222 Spruce Street Suite 7.103, 
St. Louis, MO 63103 between 7:30 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Commander (LCDR) Scott 
Stoermer, Sector Upper Mississippi River, Coast Guard at (314) 269-2540 
or Scott.A.Stoermer@uscg.mil.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because it would be contrary to public 
interest to publish an NPRM as immediate action is necessary to protect 
the public and property from the dangers associated with flooding 
emergencies.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying its effective date would 
be contrary to public interest because immediate action is needed to 
protect vessels and mariners from the safety hazards associated with 
flooding emergencies.

Basis and Purpose

    On June 1, 2011, the Captain of the Port Upper Mississippi River 
deemed navigation on the Missouri River unsafe due to severe flooding 
and has restricted navigation on the Missouri River, from the border 
between Montana and North Dakota at 104.05 degrees west longitude to 
the confluence with the Mississippi River at 90.11 degrees West 
longitude and extending the entire width of the river. Entry into this 
zone is prohibited during enforcement periods unless specifically 
authorized by the Captain of the Port Sector Upper Mississippi River or 
a designated representative. Emergency response boats or vessels may 
enter these waters when responding to emergent situations on or near 
the river.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone for the 
Missouri River from the border between Montana and North Dakota at 
104.05 degrees west longitude to the confluence with the Mississippi 
River at 90.11 degrees West longitude and extending the entire width of 
the river. During enforcement periods, vessels and tows may not enter 
this zone unless authorized by the Captain of the Port Sector Upper 
Mississippi River. Emergency response boats or vessels may enter these 
waters when responding to emergent situations on or near the river. 
This rule is effective from 12:01 a.m. CDT June 2, 2011 until 11:59 
p.m. CDT August 30, 2011, unless terminated earlier. This safety zone 
will be enforced when high water conditions pose a danger to 
navigation, the levee system, and the general public. The Captain of 
the Port Sector Upper Mississippi River will inform the public through 
broadcast notices to mariners and/or marine safety information 
bulletins when enforcement periods are in place and of all safety zone 
changes. When enforcement is implemented, vessels currently in the 
safety zone will be provided opportunity to safely exit the restricted 
area.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    Notifications to the marine community will be made through 
broadcast notices to mariners and/or marine safety information 
bulletins. Vessels requiring entry into or passage through the Safety 
Zone may request permission from the Captain of the Port Sector Upper 
Mississippi, or a designated representative and entry will be evaluated 
on a case-by-case basis to minimize impact and protect the general 
public, levee system, and vessels from destruction, loss or injury due 
to the hazards associated with rising flood water. The impacts on 
routine navigation are expected to be minimal.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.

[[Page 37648]]

    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule will affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit waters of the Missouri River from the border between Montana 
and North Dakota at 104.05 degrees west longitude to the confluence 
with the Mississippi River at 90.11 degrees West longitude extending 
the entire width of the river on and after 12:01 a.m. CDT June 2, 2011, 
unless terminated earlier. This temporary safety zone is not expected 
to have a significant economic impact on a substantial number of small 
entities because vessels may request permission to transit the area 
from the Captain of the Port Sector Upper Mississippi, or a designated 
representative, for passage through the safety zone. Passage through 
the safety zone will be evaluated on a case-by-case basis to minimize 
impact and protect the general public, levee system, and vessels from 
destruction, loss or injury due to the hazards associated with rising 
flood water. If you are a small business entity and are significantly 
affected by this regulation, please contact LCDR Scott Stoermer, Sector 
Upper Mississippi River, Coast Guard at (314) 269-2540.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so they could better evaluate its 
effects on them and participate in the rulemaking process. Small 
businesses may send comments on the actions of Federal employees who 
enforce, or otherwise determine compliance with, Federal regulations to 
the Small Business and Agriculture Regulatory Enforcement Ombudsman and 
the Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small businesses. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that Order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because this rule is not expected to result 
in any significant adverse environmental impact as described in the 
National Environmental Policy Act of 1969 (NEPA).
    This rule involves establishing a temporary safety zone in an 
emergency situation and will be in effect for over one week. An 
environmental analysis checklist and a categorical exclusion 
determination will be provided and made available at the docket as 
indicated in the ADDRESSES section.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.


[[Page 37649]]


    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. A new temporary Sec.  165.T11-0511 is added to read as follows:


Sec.  165.T11-0511  Safety Zone; Missouri River from the border between 
Montana and North Dakota

    (a) Location. The following area is a temporary safety zone: Waters 
of the Missouri River from the border between Montana and North Dakota 
at 104.05 degrees west longitude to the confluence with the Mississippi 
River at 90.11 degrees West longitude and extending the entire width of 
the river.
    (b) Effective date. From June 2, 2011 through August 30, 2011, 
unless terminated earlier.
    (c) Periods of Enforcement. This rule will be enforced during 
dangerous flooding conditions occurring between 12:01 a.m. CDT June 2, 
2011 and 11:59 p.m. CDT August 30, 2011. The Captain of the Port Sector 
Upper Mississippi River will inform the public through broadcast notice 
to mariners and/or marine safety information bulletins when enforcement 
is implemented and of any changes to safety zone. Vessels within the 
safety zone will be allowed to safely exit the area upon enforcement of 
this safety zone.
    (d) Regulations. (1) In accordance with the general regulations in 
33 CFR part 165, subpart C, operation in this zone is restricted unless 
authorized by the Captain of the Port Sector Upper Mississippi River or 
a designated representative.
    (2) Vessels requiring entry into or passage through the Safety Zone 
must request permission from the Captain of the Port Sector Upper 
Mississippi River, or a designated representative. They may be 
contacted on VHF Channel 13 or 16, or by telephone at 314-269-2332.
    (3) All persons and vessels shall comply with the instructions of 
the Captain of the Port Sector Upper Mississippi River or their 
designated representative. Designated Captain of the Port 
representatives include United States Coast Guard commissioned, 
warrant, and petty officers of the U.S. Coast Guard.

    Dated: June 2, 2011.
S. C. Teschendorf,
Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper 
Mississippi River.
[FR Doc. 2011-16096 Filed 6-27-11; 8:45 am]
BILLING CODE 9110-04-P

