[Federal Register Volume 69, Number 79 (Friday, April 23, 2004)]
[Proposed Rules]
[Pages 21981-21983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9199]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Memphis 04-001]
RIN 1625-AA00


Safety Zone; Lower Mississippi River Mile Marker 778.0 to 781.0, 
Osceola, AR

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
for all the waters of the Lower Mississippi River from mile 778.0 and 
to mile 781.0, extending the entire width of the channel. This proposed 
safety zone is needed to protect construction personnel, equipment, and 
vessels involved in the construction of ten bendway weir sites. Entry 
into this proposed zone during the enforcement periods would be 
prohibited unless specifically authorized by the Captain of the Port 
Memphis or a designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before June 22, 2004.

ADDRESSES: You may mail comments and related material to U.S. Coast 
Guard, Marine Safety Office Memphis, 200 Jefferson Avenue, Suite 1301, 
Memphis, Tennessee 38103-2300, Attn: Chief Petty Officer James Dixon. 
Marine Safety Office Memphis maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at Marine Safety Office Memphis, 200 Jefferson Avenue, Suite 
1301, Memphis, Tennessee, 38103-2300 between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Chief Petty Officer (CPO) James Dixon, 
Marine Safety Office Memphis at (901) 544-3941, extension 2116.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [COTP 
Memphis 04-001], indicate the specific section of this document to 
which each comment applies, and give the reason for each comment. 
Please submit all comments and related material in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know they reached us, please enclose a stamped, self-addressed 
postcard or envelope. We will consider all comments and material 
received during the comment period. We may change this proposed rule in 
view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Marine Safety Office Memphis at the 
address under ADDRESSES explaining why one would be beneficial. If we 
determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a later notice in the Federal Register.

Background and Purpose

    On February 26, 2004, the Army Corps of Engineers requested a 
channel closure for the Lower Mississippi River from mile 778.0 to 
781.0, to occur daily from 6 a.m. until 6 p.m. beginning on August 1, 
2004 and ending on September 30, 2004. The effective dates for this 
proposed rule are based upon the best available information and may 
change. This closure is needed to protect construction personnel, 
equipment, and vessels from potential safety hazards associated with 
vessels transiting in the vicinity of ten,

[[Page 21982]]

bendway weir construction sites. These ten bendway weir sites are 
located on the left descending bank, in the vicinity of Driver Bar 
between mile 778.0 and 781.0, Lower Mississippi River. Construction of 
the bendway weirs is needed to maintain the integrity of the left 
descending bank of the Mississippi River at the project site and can 
only be performed under optimal conditions. During working hours, 
construction equipment will be located in the navigable channel 
creating a hazard to navigation. A safety zone is needed to protect 
construction personnel, equipment, and vessels involved in the 
construction of ten bendway weir sites. During non-working hours, the 
construction equipment will be moved out of the channel, allowing 
vessels unrestricted passage through the safety zone.

Discussion of Proposed Rule

    The Captain of the Port Memphis proposes to establish a temporary 
safety zone for all the waters of the Lower Mississippi River from mile 
778.0 to mile 781.0. Entry into this proposed zone by vessels other 
than those contracted by the U.S. Army Corps of Engineers and operating 
in support of the bendway weir construction project, would be 
prohibited unless specifically authorized by the Captain of the Port 
Memphis or a designated representative. This proposed regulation would 
be effective from 6 a.m. on August 1, 2004 until 6 p.m. on September 
30, 2004. This proposed rule would only be enforced from 6 a.m. until 6 
p.m. each day of the effective period. During non-enforcement hours all 
vessels would be allowed to transit through the safety zone without 
permission from the Captain of the Port Memphis or a designated 
representative. The Captain of the Port Memphis or a designated 
representative would inform the public through broadcast notice to 
mariners of any changes to the enforcement periods for the safety zone. 
The Captain of the Port Memphis may permit vessels to navigate through 
the safety zone during work hours if conditions allow for safe transit. 
A broadcast notice to mariners would be issued announcing those times 
when it is safe to transit.

Regulatory Evaluation

    This proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    This proposed rule would be enforced for 12 hours each day that it 
is effective. During non-enforcement hours all vessels would be allowed 
to transit through the safety zone without permission from the Captain 
of the Port Memphis or a designated representative. The Captain of the 
Port Memphis or a designated representative would inform the public 
through broadcast notice to mariners of changes to the enforcement 
periods for the safety zone. The Captain of the Port Memphis may permit 
vessels to transit through the safety zone during work hours if 
conditions allow for safe transit. A broadcast notice to mariners would 
be issued announcing those times when it is safe to transit. 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 proposed 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.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which may be small entities: the owners or operators of vessels 
intending to transit the waters of the Lower Mississippi River, Mile 
Marker 778.0 to 781.0 daily from 6 a.m. on August 1, 2004 until 6 p.m. 
on September 30, 2004.
    This proposed rule zone would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (1) This proposed rule would be enforced from 6 a.m. until 6 
p.m. on each day that it is effective; (2) During non-enforcement hours 
all vessels would be allowed to transit through the safety zone without 
permission from the Captain of the Port Memphis or a designated 
representative; (3) The Captain of the Port Memphis may permit vessels 
to transit through the safety zone during work hours if conditions 
allow for safe transit.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.

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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. 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 Chief Petty Officer James Dixon 
at (901) 544-3941, extension 2116.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

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

[[Page 21983]]

Civil Justice Reform

    This proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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.

Environment

    We have analyzed this proposed 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).
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

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 proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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

    2. From August 1, 2004, to September 30, 2004, add temporary Sec.  
165.T08-024 to read as follows:


Sec.  165.T08-024  Safety Zone; Lower Mississippi River Mile Marker 
778.0 to 781.0, Osceola, AR.

    (a) Location. The following area is a safety zone: all waters of 
the Lower Mississippi River from mile 778.0 to mile 781.0, extending 
the entire width of the channel.
    (b) Effective period. This section is effective from 6 a.m. on 
August 1, 2004, until 6 p.m. on September 30, 2004.
    (c) Enforcement period. This section will be enforced from 6 a.m. 
until 6 p.m. each day of the effective period. The Captain of the Port 
Memphis or a designated representative will inform the public through 
broadcast notice to mariners of any changes to the enforcement periods 
for the safety zone.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone by vessels other than 
those contracted by the U.S. Army Corps of Engineers and operating in 
support of the bendway weir construction project is prohibited unless 
authorized by the Captain of the Port Memphis.
    (2) During non-enforcement hours all vessels are permitted to 
transit through the safety zone without permission from the Captain of 
the Port Memphis or a designated representative.
    (3) The Captain of the Port Memphis may permit vessels to navigate 
during work hours if conditions allow for safe transit. A broadcast 
notice to mariners will be issued announcing those times when it is 
safe to transit.
    (4) Persons or vessels requiring entry into or passage through the 
zone at times other than those specified in section (d)(2) and (d)(3) 
of this section must request permission from the Captain of the Port 
Memphis or a designated representative. The Captain of the Port Memphis 
may be contacted by telephone at (901) 544-3912, extension 2124. Coast 
Guard Group Lower Mississippi River may be contacted on VHF-FM Channel 
13 or 16.
    (5) All persons and vessels shall comply with the instructions of 
the Captain of the Port Memphis and designated representatives. 
Designated representatives include Coast Guard Group Lower Mississippi 
River.

    Dated: April 6, 2004.
D.C. Stalfort,
Commander, U.S. Coast Guard, Captain of the Port Memphis.
[FR Doc. 04-9199 Filed 4-22-04; 8:45 am]
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