[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28255-28258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11539]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0315]
RIN 1625-AA00


Safety Zone; Upper Mississippi River, Mile 183.0 to 183.5

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all waters of the Upper Mississippi River, from mile 183.0 to mile 
183.5, in the vicinity of the Merchants Bridge and extending the entire 
width of the river. This safety zone is needed to protect repair 
workers and vessels transiting the area on the Upper Mississippi River 
to complete bridge repairs. Entry into this zone is prohibited unless 
specifically authorized by the Captain of the Port Upper Mississippi 
River or a designated representative.

DATES: Effective Date: This rule is effective in the CFR from May 14, 
2012 until 7 p.m. on December 31, 2012. This rule is effective with 
actual notice for purposes of enforcement beginning 7 a.m. on April 10, 
2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2012-0315 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2012-0315 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. 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 9:00 a.m. and 5:00 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Chief Petty Officer Ryan Christensen, 
Sector Upper Mississippi River Waterways Management Department at 
telephone 314-269-2721, email

[[Page 28256]]

[email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

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 using the NPRM process. On April 10, 2012, the Coast 
Guard received notice that a marine casualty caused damage to a railway 
bridge on April 9, 2012. Immediate repairs are now required for the 
bridge. This short notice did not allow for the time needed to publish 
a NPRM and provide for a comment period. Delaying this rule by 
publishing a NPRM would be contrary to the public interest by 
unnecessarily delaying the bridge repairs and the safety zone needed to 
protect repair workers and vessels transiting the area on the Upper 
Mississippi River. Additionally, delaying the repairs and inspections 
for the NPRM process would unnecessarily impede the flow of commercial 
river traffic and railroad traffic. This rule is needed to protect 
repair workers and vessels transiting this area on the Upper 
Mississippi River.
    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. Delaying this rule 
by providing 30 days notice would be contrary to the public interest by 
unnecessarily delaying the bridge repairs and the safety zone needed to 
protect repair workers and vessels transiting the area on the Upper 
Mississippi River.

Basis and Purpose

    On April 9, 2012, a marine casualty involving a down bound crane 
barge striking the Merchants Bridge resulted in structural damage to 
the bridge, reduced vertical clearance, hanging wreckage, and a North-
side railroad track closure. Initial repairs to the bridge started 
immediately with Saint Louis Bridge Construction performing a series of 
repairs and inspections on the Merchants Bridge in the vicinity of mile 
183.0 to 183.5 on the Upper Mississippi River. After initial repairs, 
ongoing and intermittent inspections and full repairs will continue and 
the Coast Guard determined that a temporary safety zone is necessary to 
protect repair workers and marine traffic. Establishing this safety 
zone around the Merchants Bridge and repair personnel and equipment is 
intended to safeguard against disruption of positioned repair 
equipment, potential large falling debris, and possible hazards related 
to ongoing repairs in and around commercial traffic in the vicinity of 
mile 183.0 to 183.5 on the Upper Mississippi River.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone for all 
waters of the Upper Mississippi River, from mile 183.0 to 183.5, in the 
vicinity of Merchants Bridge and extending the entire width of the 
river. Entry into this zone is prohibited to all vessels and persons 
unless specifically authorized by the Captain of the Port Upper 
Mississippi River. This rule is effective from 7 a.m. on April 10, 2012 
through 7 p.m. on December 31, 2012, but will only be enforced during 
intermittent repair and inspection operation periods that will be 
announced by broadcast notices to mariners with the greatest advance 
notice possible. Due to the unpredictability of the Upper Mississippi 
River, National Weather Service's forecasts will be used to determine 
the most suitable conditions for bridge repairs and inspections. 
Advanced notice will be given to the maximum extent possible, but 
despite best efforts, the safety zone may be established with minimal 
notice when ideal work conditions are identified. The Captain of the 
Port Upper Mississippi River will inform the public and maritime 
industry through broadcast notice to mariners of the enforcement 
periods and changes to the safety zone and its enforcement.

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.
    Although this rule will be effective until December 31, 2012 unless 
repairs and inspections are completed sooner, it will only be enforced 
for limited time periods during days scheduled for repair work or 
bridge inspections. By enforcing this safety zone for limited periods 
of time throughout the effective period, marine traffic will not be 
significantly impacted. Entry into or passage through the safety zone 
will be considered on a case-by-case basis by the Captain of the Port 
Upper Mississippi or designated representative. Notifications of, and 
changes to, the enforcement period will be made via broadcast notice to 
mariners.

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.
    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 Upper Mississippi River, mile 183.0 to 183.5 during 
enforcement periods. The enforcement periods will be for a limited 
duration. By enforcing this safety zone for a limited duration of time 
intermittently throughout the effective period, marine traffic will not 
be significantly impacted. This safety zone will not have a significant 
economic impact on a substantial number of small entities because this 
rule will only be enforced during limited periods of time throughout 
the effective period.
    If you are a small business entity and are significantly affected 
by this regulation, please contact Chief Petty Officer Ryan 
Christensen, Sector Upper Mississippi River Response Department at 
telephone 314-269-2721, email [email protected].

[[Page 28257]]

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 businesses. 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 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 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 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. This rule establishes a safety zone related to effecting 
bridge repairs and 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).
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where 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--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, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.
0
2. A new temporary Sec.  165.T08-0315 is added to read as follows:


Sec.  165.T08-0315  Safety Zone; Upper Mississippi River, Mile 183.0 to 
183.5.

    (a) Location. The following area is a safety zone: All waters of 
the Upper Mississippi River, mile 183.0 to 183.5, in the vicinity of 
the Merchants Bridge, extending the entire width of the waterway.
    (b) Effective date. This rule is effective from 7 a.m. on April 10, 
2012 through 7 p.m. on December 31, 2012.
    (c) Periods of Enforcement. This rule will be enforced 
intermittently during the effective period when conditions are 
conducive for bridge repairs and inspections based on contractor

[[Page 28258]]

availability, river forecasts, and observed weather. The Captain of the 
Port Upper Mississippi River will inform the public of the enforcement 
periods and any changes through broadcast notice to mariners.
    (d) 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 Captain of the Port Upper Mississippi River or a 
designated representative.
    (2) Persons or vessels requiring entry into or passage through the 
zone must request permission from the Captain of the Port Upper 
Mississippi River or a designated representative. The Captain of the 
Port Upper Mississippi River may be contacted at 314-269-2332 or VHF-FM 
16.
    (3) All persons and vessels shall comply with the instructions of 
the Captain of the Port Upper Mississippi River or their designated 
representative. Designated Captain of the Port representatives include 
United States Coast Guard commissioned, warrant, and petty officers.

    Dated: April 10, 2012.
B.L. Black,
Captain, U.S. Coast Guard, Captain of the Port Upper Mississippi River.
[FR Doc. 2012-11539 Filed 5-11-12; 8:45 am]
BILLING CODE 9110-04-P