
[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Rules and Regulations]
[Pages 70222-70225]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27560]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0907]
RIN 1625-AA11


Regulated Navigation Area; Upper Mississippi River Between Mile 
0.0 and 109.9; Cairo, IL to Chester, IL

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 
(UMR) between miles 0.0 and 109.9. This RNA is needed to protect 
persons, property, and infrastructure from potential damage and safety 
hazards associated with subsurface rock removal in 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) Ohio Valley or his designated 
representatives.

DATES: This rule is effective without actual notice from November 25, 
2013 until April 12, 2014. For the purposes of enforcement, actual 
notice will be used from the date the rule was signed, November 4, 
2013, until November 25, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0907]. 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. If you have questions on viewing or 
submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

AIS Automated Information System
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
MSU Marine Safety Unit
M/V Motor Vessel
NPRM Notice of Proposed Rulemaking
RIAC River Industry Action Committee
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 ``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. On July 18, 2013 the U.S. Army Corps of 
Engineers (USACE) St. Louis District contacted Coast Guard Marine 
Safety Unit (MSU) Paducah, KY with notification that a contract had 
been issued for subsurface rock removal in the Thebes, IL area. The 
rock removal project is required to assist navigation through the 
channel during certain low water and river conditions and can only be 
completed during certain environmental conditions. The environmental 
window for the rock removal project is November 1, 2013 to April 12, 
2014, and the project was not expected to require additional vessel 
restrictions and requirements possibly leading to river closures as the 
work areas were on the far outer edge, or totally outside of the 
navigation channel. On August 27, 2013, MSU Paducah participated in a 
conference call with USACE St. Louis and River Industry Action 
Committee (RIAC) leadership concerning the rock removal project. RIAC 
is an association of companies and organizations who are stakeholders 
in the commercial industry on the inland rivers. During this call, 
based on low water, river conditions, industry use and concerns, the 
Coast Guard determined that implementing vessel restrictions and 
requirements and possible river closures may be necessary when the rock 
removal contractor is working in specific locations for safety 
purposes. The RIAC leadership participating on this call agreed that 
these safety measures are necessary. Similar safety measures were 
implemented by the Coast Guard for this area from December 1, 2012 
through March 31, 2013 based on low water conditions (77 FR 15850).
    On October 17, 2013, MSU Paducah personnel attended a meeting at 
the USACE Jackson, MO field office with USACE personnel, the contractor 
for this project, and numerous RIAC member companies. During this 
meeting the contractor for the project expressed their safety concerns 
and referred to a clause in their contract that they interpreted as 
allowing for river closures necessary for safety reasons. The Coast 
Guard determined that the best course of action is for the contractor 
to initiate work with normal vessel traffic transiting to determine if/
when and what additional safety measures are required during the rock 
removal project. These safety measures may include closures and/or 
vessel restrictions and requirements, including one-way traffic, tow 
size, designated vessel reporting locations, etc. as necessary when the 
contractor is working in certain locations for safety purposes. In 
addition, use of the

[[Page 70223]]

Automated Information System (AIS) will be vital for the Coast Guard to 
maintain situational awareness while the restrictions and requirements 
are in place and to help facilitate the clearing of vessel queues 
following river closures. These vessel restrictions and requirements 
are vital to maintaining safe navigation on the Upper Mississippi River 
(UMR) during the rock removal project and to resuming safe navigation 
as quickly as possible following river closures. As a result, the Coast 
Guard is implementing the RNA to protect mariners and vessels. The 
timing of the actual notice of definitive need for vessel restrictions 
does not allow for the time required to complete the NPRM process. 
Immediate action establishing this RNA is needed to protect persons and 
property from the safety hazards associated with the subsurface rock 
removal on the Upper Mississippi River. Delaying the effective date for 
this RNA to complete the NPRM process would be contrary to the public 
interest and would unnecessarily delay the rock removal project. 
Broadcast Notices to Mariners (BNM) and information sharing with RIAC 
will update mariners of the restrictions, requirements, and enforcement 
periods throughout the entire RNA, or at specific areas within the RNA.
    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 its 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 subsurface rock removal operations 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; Public Law 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 protect persons and vessels while 
subsurface rock removal operations are ongoing on the UMR from mile 
38.0 to mile 46.0. The removal operations pose significant safety 
hazards to vessels and mariners operating on the UMR. Establishing the 
RNA to extend from mile 0.0 to mile 109.9 is necessary for the Coast 
Guard to maintain situational awareness of vessels operating in the 
UMR, and, at the request of RIAC, assist in facilitating the clearing 
of vessel queues following closures or restrictions of the river from 
mile 38.0 to mile 46.0. For these reasons, the Coast Guard is 
establishing the RNA to implement various waterway operational 
controls, including specific restrictions and requirements, for vessels 
transiting between mile 0.0 and 109.9 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 mile 109.9, extending the 
entire width of the river. Within this RNA various restrictions and 
requirements may be put into effect based on the actual or planned 
subsurface rock removal operations between mile 38.0 and mile 46.0. 
These restrictions and requirements will be the minimum necessary to 
protect persons, property, and infrastructure from the potential 
hazards associated with low water and subsurface rock removal and may 
include, but are not limited to, river closures, tow size, tow 
configuration, vessel/barge draft, assist vessels, speed, vessel 
traffic reporting, hours of transit, one way traffic, and the use of 
AIS if fitted onboard a vessel. Enforcement times and specific 
restrictions and requirements will be announced via Broadcast Notice to 
Mariners (BNM), through outreach with the RIAC, the Local Notice to 
Mariners (LNM) and through other public notice. Any deviation from the 
requirements put into place are prohibited unless specifically 
authorized by the COTP Ohio Valley, 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 or 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 109.9. 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, and through Local Notice to Mariners (LNM). 
The impacts on navigation will be limited to ensuring the safety of 
mariners and vessels associated with hazards presented by USACE 
contractor operations involving subsurface rock removal, and the safe 
and timely resumption of vessel traffic following any river closures or 
restrictions associated with subsurface rock removal operations. 
Operational controls under this RNA will be the minimum necessary to 
protect mariners, vessels, the public, and the environment from known 
or perceived risks.

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. 
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 November 4, 2013 to April 12, 2014. This RNA will not 
have a significant economic impact on a substantial number of small 
entities because this rule allows for the intermittent passing of 
vessels. Traffic in this area is limited to almost entirely 
recreational vessels and commercial towing vessels subject to noticed 
restrictions and requirements. Notifications to the marine community 
will be made through BNM, LNM, and communications with RIAC. 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.

[[Page 70224]]

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. A new temporary Sec.  165.T08-0907 is added to read as follows:


Sec.  165.T08-0907  Regulated Navigation Area; Upper Mississippi River 
between mile 0.0 and 109.9, Cairo, IL to Chester, IL.

    (a) Location. The following area is a regulated navigation area 
(RNA): all waters of the Upper Mississippi River between mile 0.0 and 
mile 109.9, Cairo, IL to Chester, IL, extending the entire width of the 
river.
    (b) Effective dates. This RNA is effective and enforceable with 
actual notice from November 4, 2013 through April 12, 2014.
    (c) Regulations. (1) The Captain of the Port (COTP) Ohio Valley 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 during subsurface rock 
removal operations, 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

[[Page 70225]]

prescribed under paragraph (c)(1) of this section.
    (3) Persons or vessels may request an exception from any 
requirement prescribed under paragraph (c)(1) of this section from the 
COTP Ohio Valley or a designated representative who may be a 
commissioned, warrant, or petty officer of the Coast Guard. The COTP 
Ohio Valley may be contacted by telephone at 1-800-253-7465 or on VHF-
FM channel 16.
    (d) Enforcement. The COTP Ohio Valley 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: November 4, 2013.
K.S. Cook,
Rear Admiral, U.S. Coast Guard, Eighth District Commander.
[FR Doc. 2013-27560 Filed 11-22-13; 8:45 am]
BILLING CODE 9110-04-P


