
[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Rules and Regulations]
[Pages 75850-75853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30983]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1044]
RIN 1625-AA11


Regulated Navigation Area; Upper Mississippi River MM 0.0 to MM 
185.0; Cairo, IL to St. Louis, MO

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary regulated 
navigation area (RNA) for all waters of the Upper Mississippi River 
between miles 0.0 and 185.0. This RNA is needed to protect persons, 
property, and infrastructure from potential damage and safety hazards 
associated with extreme low water conditions on the Upper Mississippi 
River. Any deviation from the conditions and requirements put into 
place are prohibited unless specifically authorized by the cognizant 
Captain of the Port (COTP) (COTP Ohio Valley for MM 0.0 to MM 109.9 or 
COTP Upper Mississippi River for MM 109.9 to MM 185.0) or their 
designated representatives.

DATES: This rule is effective in the CFR on December 26, 2012 and 
effective with actual notice for purposes of enforcement on December 1, 
2012, until March 31, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2012-1044]. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Dan McQuate, U.S. Coast Guard; telephone 270-442-1621, 
email daniel.j.mcquate@uscg.mil or CWO Scott Coder, U.S. Coast Guard; 
telephone 314-269-2575, email justin.s.coder@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

AIS Automatic Identification System
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
M/V Motor Vessel
NPRM Notice of Proposed Rulemaking
RIAC River Industry Action Committee
RNA Regulated Navigation Area
UMR Upper Mississippi River
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

[[Page 75851]]

``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. The Coast Guard has tracked low water conditions 
throughout the Western Rivers during the summer and fall of 2012. 
Throughout this time, it has not been possible to accurately predict 
the extent to which rivers may be affected due to uncertainties with 
local weather, specifically rainfall amounts. On November 20, 2012 the 
United States Army Corps of Engineers (USACE) and Coast Guard hosted a 
joint meeting with the River Industry Action Committee (RIAC), the 
industry committee for the Upper Mississippi River (UMR), in St. Louis, 
MO. During this meeting the USACE noted that approximately two-thirds 
of the continental United States continues to be affected by an ongoing 
and persistent drought. As a result of the drought and the normal 
annual reduced flows per the operational plan for the Missouri River, 
they predicted extreme low water conditions in the UMR beginning in 
early December 2012. Therefore, various control measures or directions 
to vessels operating on the UMR are immediately needed to address safe 
navigation concerns brought on by the extreme low water conditions. Due 
to the timing of the actual notice of definitive low water conditions, 
there is not enough time to complete the NPRM process before the onset 
of extreme low water conditions that will expose persons and property 
to safety hazards, contrary to the public interest.
    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 30 days 
notice and delaying the RNA's effective date would be contrary to 
public interest because immediate action is needed to protect persons, 
property and infrastructure from the potential damage and safety 
hazards associated with low water conditions on the UMR.

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 RNAs.
    The purpose of this RNA is to address safe navigation concerns for 
persons and vessels while extreme low water conditions exist on the UMR 
from mile 0.0 to mile 185.0. The extreme low water conditions pose 
significant safety hazards to vessels and mariners operating on the 
UMR. For this reason, the Coast Guard is establishing this RNA to 
implement various waterway operational controls that vessels will have 
to follow while operating on the UMR.

C. Discussion of the Temporary Final Rule

    The Coast Guard is establishing a temporary RNA for all vessel 
traffic on the UMR between mile 0.0 and 185.0, extending the entire 
width of the river. Within this RNA various restrictions and 
requirements may be put into effect based on actual or projected 
channel widths and depths. These restrictions and requirements will be 
the minimum necessary for the protection of persons, property and 
infrastructure from the potential damage and safety hazards associated 
the extreme low water and may include, but are not limited to, 
limitations on tow size, tow configuration, vessel/barge draft, assist 
vessels, speed, under keel clearance, vessel traffic reporting, hours 
of transit, one way traffic, and use of Automatic Identification System 
(AIS) if fitted onboard a vessel. Enforcement times and specific 
restrictions and requirements for the entire regulated navigation area, 
or specific areas within the regulated navigation area, will be 
announced via Broadcast Notice to Mariners (BNM), through outreach with 
RIAC,the Local Notice to Mariners, and through other public notice.
    Any deviation from the requirements put into place are prohibited 
unless specifically authorized by the COTP Ohio Valley, COTP Upper 
Mississippi River, or a designated representative. Deviations for the 
specific restrictions and regulations will be considered and reviewed 
on a case-by-case basis. The COTP Ohio Valley may be contacted by 
telephone at 1-800-253-7465. The COTP Upper Mississippi River may be 
contacted by telephone at 314-269-2332. All COTPs can be reached by 
VHF-FM channel 16.

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 rule establishes a 
temporary RNA for vessels on all waters of the UMR from mile 0.0 to 
mile 185.0. Notifications of enforcement times of control measures and 
requirements put into effect for the entire RNA, or specific areas 
within the RNA, will be communicated to the marine community via BNM, 
through outreach with RIAC, Local Notice to mariners, and through other 
public notice. The impacts on navigation will be limited to addressing 
the safety of mariners and vessels associated with hazards due to river 
conditions during low water. Operational controls under this RNA will 
be the minimum necessary to protect mariners, vessels, the public, and 
the environment from risks due to extreme low water conditions.

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 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.
    This rule will affect the following entities, some of which may be 
small entities: the owners or operators of vessels intending to transit 
the UMR, from December 1, 2012 to March 31, 2013. This RNA will not 
have a significant economic impact on a substantial number of small 
entities because traffic in this area is limited almost entirely to 
recreational vessels and commercial towing vessels, and this rule 
allows vessels to pass through the area, subject to certain 
restrictions. Notifications to the marine community will be made 
through BNM, communications with RIAC, and other public notice. Notices 
of changes to the RNA 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

[[Page 75852]]

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 new temporary Sec.  165.T08-1044 to read as follows:


Sec.  165.T08-1044  Regulated Navigation Area; Upper Mississippi River 
between mile 0.0 and 185.0, Cairo, IL to St. Louis, MO.

    (a) Location. The following area is a regulated navigation area 
(RNA): all waters of the Upper Mississippi River between mile 0.0 and 
185.0, Cairo, Illinois, to St. Louis, Missouri, extending the entire 
width of the river.
    (b) Effective dates. This RNA is effective and enforceable with 
actual notice from December 1, 2012 through March 31, 2013.
    (c) Regulations. (1) Within their respective portions of the RNA, 
the Captains of the Port (COTP) Ohio Valley and Upper Mississippi River 
may prescribe, for all or specific portions of the RNA, periods of 
enforcement and minimum operational requirements necessary to preserve 
safe navigation on the Upper Mississippi River despite extreme low 
water conditions, including, but not limited to, the required use of 
assist vessels, vessel traffic reporting, and Automatic Information 
Systems when fitted onboard a vessel; and restrictions on the 
following:
    (i) tow size;
    (ii) tow configuration;
    (iii) vessel/barge draft;
    (iv) speed;
    (v) under Keel Clearance;
    (vi) hours of transit; and
    (vii) one way traffic.
    (2) All persons and vessels must comply with any requirement 
prescribed under paragraph (c)(1) of this section.

[[Page 75853]]

    (3) Persons or vessels may request an exception from any 
requirement prescribed under paragraph (c)(1) of this section from the 
cognizant COTP or their designated representative who may be a 
commissioned, warrant, or petty officer of the Coast Guard or a 
military or civilian member of the U.S. Army Corps of Engineers. The 
COTP Ohio Valley may be contacted by telephone at 1-800-253-7465. The 
COTP Upper Mississippi River may be contacted by telephone at 314-269-
2332. Both may also be contacted on VHF-FM channel 16.
    (d) Enforcement. The COTP Ohio Valley and COTP Upper Mississippi 
River will notify the public of the specific requirements prescribed 
under paragraph (c)(1) of this section and of the times when those 
requirements will be enforced or when enforcement will be suspended, 
using means designed to ensure maximum effectual notice including, but 
not limited to, broadcast notices to mariners (BNM) and communications 
through the River Industry Action Committee.

    Dated: December 14, 2012.
R.A. Nash,
Rear Admiral, U.S. Coast Guard Eighth District Commander.
[FR Doc. 2012-30983 Filed 12-21-12; 4:15 pm]
BILLING CODE 9110-04-P


