[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Rules and Regulations]
[Pages 53820-53822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22198]


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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; change of effective period.

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SUMMARY: The Coast Guard is extending the effective period for the 
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. Temporary 
section 33 CFR 165.T11-0511, which established the temporary safety 
zone, was set to expire August 30, 2011. Extending the effective period 
for this safety zone provides continued and uninterrupted protection of 
levees and personnel involved in ongoing high water response. 
Continuing the safety zone will significantly reduce the threat of 
destruction to levees and vessels and tows.

DATES: Section 165.T11-0511 temporarily added at 76 FR 37647, June 28, 
2011, effective from June 2, 2011 to August 30, 2011, will continue in 
effect through October 31, 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
notice, call or e-mail Lieutenant Commander (LCDR) Scott Stoermer, 
Sector Upper Mississippi River, Coast Guard at (314) 269-2540 or 
[email protected].

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 an NPRM. This rule extends the existing 
temporary safety zone 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, which is currently set to 
expire on August 30, 2011. This extension is necessary to continue 
uninterrupted protection of levees and personnel involved in ongoing 
high water response.
    Failing to extend the effective dates for this rule pending 
completion of notice and comment rulemaking is impracticable and 
contrary to the public interest because it would cause a gap in the 
ability to enforce the needed safety zone for protection of all 
responders, the response efforts, and the environment. 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.

Basis and Purpose

    The safety zone in place pursuant to the temporary final Rule at 
docket USCG-2011-0511 (76 FR 37647) established a safety zone for the 
record flooding on the Missouri River from June 2, 2011 through August 
30, 2011. The safety zone was enforced through actual notice from June 
2, 2011 until June 28, 2011, when the rule published in the Federal 
Register to ensure seamless protection of those involved in the 
response efforts. This rule extends the effective dates of the 
temporary safety zone 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, which is currently set to 
expire on August 30, 2011. The temporary safety zone created by this 
rule ensures that there is no gap in authority to protect all 
responders, levees, and tow boats and tows.

Discussion of Rule

    The Coast Guard is extending the effective date of a safety zone 
encompassing the entire 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. The 
Captain of the Port Sector Upper Mississippi River will

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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 Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

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 that Executive Order 12866 
or under section 1 of Executive Order 13563. The Office of Management 
and Budget has not reviewed it under that those Orders.
    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, vessels from destruction, and 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.
    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, vessels from destruction, and 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 offer to assist small 
entities in understanding the rule so that they can 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 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.

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 (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.

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.

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

[[Page 53822]]

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 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 concluded 
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, under figure 2-1, paragraph (34)(g), of 
the Instruction, from further environmental documentation since 
implementation of this action will not result in any significant 
cumulative impacts on the human environment; does not involve a 
substantial change to existing environmental conditions; and is 
consistent with Federal, State, and/or local laws or administrative 
determinations relating to the environment. This rule involves 
establishing a temporary safety zone.
    Pursuant to paragraph (34)(g) of the Instruction, an environmental 
checklist and a categorical exclusion checklist are available in the 
docket indicated under ADDRESSES.

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--SAFETY ZONES

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. Section 165.T11-0511 temporarily added at 76 FR 37647, 28 June 2011, 
effective from June 2, 2011 to August 30, 2011, will continue in effect 
through October 31, 2011.

    Dated: August 18, 2011.
B.L. Black,
Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi 
River.
[FR Doc. 2011-22198 Filed 8-29-11; 8:45 am]
BILLING CODE 9110-04-P