
[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Rules and Regulations]
[Pages 63729-63732]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25543]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0738]
RIN 1625-AA00


Fixed and Moving Safety Zone; Around the USACE Bank Grading 
Units, Mat Sinking Unit, and the M/V Harrison and M/V William James

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary fixed and moving 
safety zone for all waters within 100 yards of the US Army Corps of 
Engineers (USACE) Bank Grading Units, Mat Sinking Unit and M/V Harrison 
and M/V William James while operating on the Mississippi River. This 
safety zone is needed to protect vessels and mariners from the safety 
hazards associated with bank grading and mat sinking operations 
performed by the USACE. Entry into this zone is prohibited unless 
specifically authorized by the cognizant Captain of the Port (COTP) 
(COTP Lower Mississippi River for MM 303.0 to MM 869.0 or COTP Ohio 
Valley MM 869.0 to MM 958.0) or a designated representative.

DATES: This rule is effective with actual notice from July 31, 2012 
until October 17, 2012. This rule is effective in the Code of Federal 
Regulations from October 17, 2012 until 8:00 a.m. November 1, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0738. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

[[Page 63730]]


FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email CWO David Bear, U. S. Coast Guard; telephone 901-521-
4728, email david.m.bear@uscg.mil. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
M/V Motor Vessel
COTP Captain of the Port
MM Mile Marker
USACE United States Army Corps of Engineers

A. Regulatory History and 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 as publication of an NPRM would be 
impracticable. The Coast Guard received notification from the USACE on 
or about July 13, 2012 about necessary bank grading and mat laying 
operations by the Vicksburg District USACE.
    For the same reasons, 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. Providing a full 30 
days notice before the final rule effective date is would be 
impracticable for the reasons described above. Immediate action 
implementing this safety zone is needed to protect persons and property 
from the safety hazards associated with bank grading and mat sinking 
operations on the Mississippi River.

B. Basis and Purpose

    The legal basis and authorities for this rule are found in 33 
U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; 
and Department of Homeland Security Delegation No. 0170.1, which 
collectively authorize the Coast Guard to establish and define 
regulatory safety zones.
    The COTPs Lower Mississippi River and Ohio Valley received 
notification from the USACE that the USACE will be performing bank 
grading and mat sinking operations on the Mississippi River. These 
operations are vital in maintaining a navigable channel for commerce to 
operate on the river and can only be done during certain times of the 
year, and under specific water levels and conditions. The fact that the 
operations are taking place on a highly transited waterway presents 
hazards to both the waterway traffic and the workers involved in the 
operations. A fixed and moving safety zone is needed to protect 
mariners, workers, vessels and other property from the hazards 
associated with bank grading and mat laying operations. Additionally, a 
fixed and moving safety zone will assist in timely completion of the 
USACE operations.
    The USACE also requested that the Coast Guard implement a safety 
zone restricting traffic on the waterway to protect both mariners and 
persons involved in the operations, specifically the Bank Grading 
Units, Mat Sinking Unit, and the M/V Harrison and M/V William James and 
any other operating units. The USACE informed the USCG that during the 
effective period, USACE operations will require waterway closures 
lasting approximately one hour at a time when no traffic will be 
allowed to transit within 500 yards of the operations. Broadcast 
Notices to Mariners (BNM) and Marine Safety Information Bulletins 
(MSIBs) can be issued by the Coast Guard to inform marine traffic of 
these times based on notice provided by the USACE.

C. Discussion of the Final Rule

    The Coast Guard is establishing a temporary fixed and moving safety 
zone for all waters within 100 yards of the USACE Bank Grading Unit, 
Mat Sinking Unit, and the M/V Harrison and M/V William James while 
conducting operations on the Mississippi River. This safety zone is 
intended to protect persons and property, providing the necessary 
safety measures affording the USACE to continue with ongoing and timely 
USACE operations necessary to maintain the commercial channel for the 
designated areas on the Mississippi River. While these operations are 
taking place, vessels are required to operate at a minimum safe speed 
when transiting within all waters encompassing a 100 yard radius around 
the USACE operating units and vessels are prohibited from transiting 
into, through, or within a 50 yard radius of the USACE operating units 
and vessels, unless specifically authorized as explained below. 
Anchoring, stopping, remaining or drifting without power within the 
safety zone is prohibited at all times.
    Requests to deviate from these restrictions may be made to the 
applicable COTP and will be considered on a case-by-case basis. The 
COTP Lower Mississippi River may be contacted by telephone at 866-777-
2784. The COTP Ohio Valley may be contacted at 1-800-253-7465. All 
COTPs can be reached by VHF-FM channel 16. The respective Captain of 
the Port or a designated representative will inform the public through 
broadcast notice to mariners of the location of the Bank Grading Units, 
Mat Sinking Unit and the M/V Harrison and M/V William James effective 
period for the safety zone and of any changes in the effective period 
for the safety zone. This rule is effective from August 2, 2012 through 
8 a.m. November 1, 2012, local time. If emergency dredging is completed 
earlier, enforcement of the safety zone will be curtailed.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    This regulation is not a significant regulatory action because it 
will only be in effect for limited periods of time and will not 
substantially obstruct maritime traffic. Notifications to the marine 
community will be made through broadcast notice to mariners and 
electronic mail. Notices of changes to the safety zone and effective 
times will also be made. Deviation from the restrictions may be 
requested from the COTP or designated representative and will be 
considered on a case-by-case basis. The impacts on routine navigation 
are expected to be minimal.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the

[[Page 63731]]

potential impact of regulations on small entities during rulemaking. 
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.
    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 the Mississippi River, effective from August 2, 2012 through 
November 1, 2012, local time. This safety zone will not have a 
significant economic impact on a substantial number of small entities 
because this rule allows for the passing of vessels. Traffic in this 
area is limited to almost entirely recreational vessels and commercial 
towing vessels. Notifications to the marine community will be made 
through broadcast notice to mariners and electronic mail. Notices of 
changes to the safety zone and effective times will also be made. 
Deviation from the restrictions may be requested from the COTP or 
designated representative and will be considered on a case-by-case 
basis.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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 business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

8. Taking of Private Property

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

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An 
environmental analysis checklist and a categorical exclusion 
determination will be made available as indicated under the ADDRESSES 
section.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.
    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. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1

0
2. Add Sec.  165.T08-0738 to read as follows:

[[Page 63732]]

Sec.  165.T08-0738  Fixed and Moving Safety Zone; Around the USACE Bank 
Grading Units, Mat Sinking Units and the M/V Harrison and M/V William 
James.

    (a) Location. The following area is a fixed and moving safety zone: 
All waters of the Mississippi River within 100 yards of the Bank 
Grading Units, Mat Sinking Unit and the M/V Harrison and M/V William 
James.
    (b) Effective dates. This section is effective from 6 a.m. July 31, 
2012 through 8 a.m. November 1, 2012, local time.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
authorized by the COTP Lower Mississippi River, COTP Ohio Valley or a 
designated representative.
    (2) Vessels shall not enter the moving safety zone.
    (3) Persons or vessels requiring entry into or passage through the 
zone must request permission from the COTP Lower Mississippi River, 
COTP Ohio Valley or a designated representative. They may be contacted 
on VHF-FM channels 16 or The COTP Lower Mississippi River may be 
contacted by telephone at 866-777-2784. The COTP Ohio Valley may be 
contacted at 1-800-253-7465.
    (4) All persons and vessels shall comply with the instructions of 
the COTP Lower Mississippi River, COTP Ohio Valley and designated 
personnel. Designated personnel include commissioned, warrant, petty 
officers of the U.S. Coast Guard and Government employees of the US 
Army Corps of Engineers.
    (5) Minimum speed will be required of all vessels transiting within 
50 yards of the moving safety zone. Vessels receiving Captain of the 
Port authority to enter the safety zone must also transit at a minimum 
safe speed and in accordance with the direction of the Captain of the 
Port authorizing transit.
    (6) No vessel shall anchor, stop, remain or drift without power at 
anytime in the moving safety zone.
    (d) Informational broadcasts. The Captain of the Port, Lower 
Mississippi River or a designated representative will inform the public 
through broadcast notices to mariners (BNM) of the effective period for 
the safety zone and of any changes in the effective period or size of 
the safety zone.

    Dated: August 2, 2012.
W. M. Drelling,
Captain, U.S. Coast Guard, Captain of the Port Lower Mississippi.
L. W. Hewett,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2012-25543 Filed 10-16-12; 8:45 am]
BILLING CODE 9110-04-P


