[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66622-66626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26669]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0907]
RIN 1625-AA00


Safety Zones; Upper Mississippi River Between Mile 38.0 and 46.0, 
Thebes, IL; and Between Mile 78.0 and 81.0, Grand Tower, IL

AGENCY: Coast Guard, DHS.

ACTION: Interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing safety zones for all waters of 
the Upper Mississippi River (UMR) from mile 38.0 to 46.0 and from mile 
78.0 to 81.0. These safety zones are 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 November 10, 2014. Comments and related 
material must be received by the Coast Guard on or before December 10, 
2014.

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.
    You may submit comments, identified by docket number, using any one 
of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

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 [email protected]. If you have questions on viewing or 
submitting

[[Page 66623]]

material to the docket, call Cheryl F. Collins, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

AIS Automated Information System
BNM Broadcast Notice to Mariners
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
LNM Local Notice to Mariners
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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as having been received by the Coast Guard when 
it is received at the Docket Management Facility. We recommend that you 
include your name and a mailing address, an email address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as 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.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the methods specified under ADDRESSES. 
Please explain why you believe a public meeting 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.

B. Regulatory History and Information

    Based on forecasted historical low water on the UMR in the fall of 
2012, the USACE contracted subsurface rock removal operations in 
Thebes, IL to mitigate the effects of the forecasted low water event. 
In order to provide additional safety measures and regulate navigation 
during low water and the planned rock removal operations, the Coast 
Guard published a temporary final rule in the Federal Register for an 
RNA from mile 0.0 to 185.0 UMR (77 FR 75850). The RNA was in effect 
from December 1, 2012 until March 31, 2013, which is when river levels 
rebounded and the subsurface rock removal operation was delayed because 
of high water levels. During the effective period for this temporary 
RNA, restrictions were enforced for a total of approximately 45 days.
    In the fall of 2013, based on changing river conditions, low water 
was again forecasted and the USACE's contracted subsurface rock removal 
operations in Thebes, IL were scheduled to resume. The Coast Guard then 
published a second temporary final rule in the Federal Register re-
establishing the RNA (78 FR 70222). Based on the forecasted water 
levels and the plans and needs for the resumed rock removal operations, 
the RNA covered a smaller river section extending from mile 0.0 to 
109.9 on the UMR. The RNA was implemented to ensure the safety of the 
USACE contractors and marine traffic during the actual rock removal 
work, and to support the safe and timely clearing of vessel queues at 
the conclusion of the work each day. The RNA was in effect from 
November 4, 2013 until April 12, 2014, but was only enforced from 
December 10, 2013 until February 19, 2014 due to water levels 
increasing and forcing the USACE contractors to cease rock removal 
operations. During the times the RNA was enforced, the Coast Guard 
worked with the USACE, RIAC, and the USACE contractor to implement 
river closures and various restrictions to maximize the size of tows 
that could safely pass while keeping the USACE contractor crews safe. 
The Coast Guard also assisted in clearing vessel queues after each 
closure or restriction.
    On April 17, 2014, MSU Paducah contacted USACE St. Louis to 
determine if subsurface rock removal operations will be conducted in 
the Upper Mississippi River in the vicinity of Thebes, IL in future 
years. USACE St. Louis reported that such operations are anticipated to 
continue as river conditions permit, and that there are multiple phases 
of subsurface rock removal operations remaining. On August 28, 2014 
USACE St. Louis notified the Coast Guard that based on recently 
acquired data, rock removal operations will also be required in the 
Upper Mississippi River between miles 78.0 and 81.0 at Grand Tower, IL 
in the future.
    USACE St. Louis also informed the Coast Guard that the 
environmental window for these operations each year moving forward is 
July 1 to April 12. However, river conditions likely will not permit 
work for the majority of that timeframe each year, and in some years 
river conditions may not permit any work on this project to be 
completed. This project is expected to go on indefinitely when river 
conditions permit during the allowable times within the environmental 
windows. For

[[Page 66624]]

continuity and based on the necessary restrictions, USACE St. Louis 
requested continued involvement of the Coast Guard for navigation 
expertise and facilitating restrictions with users of the waterway and 
the contractor. According to USACE St. Louis, the majority of the rock 
removal operations will impact vessel traffic and requested that the 
Coast Guard establish restrictions under 33 CFR Part 165, Regulated 
Navigation Areas and Limited Access Areas to maintain safety of 
navigation during the rock removal project. The Coast determined that 
safety zones, one type of Limited Access Area provided for under 33 CFR 
Part 165, will provide the necessary additional safety measures to 
ensure commerce can continue to navigate safely while the contractors 
are working. These safety zones limit access to specific areas of the 
river during rock removal operations rather than creating a larger 
regulated area encompassing the entire stretch of river where the work 
may take place.
    The Coast Guard is issuing this interim 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. This interim rule is effective upon 
publication without prior notice through publication in the Federal 
Register, but also invites comments regarding the creation of permanent 
safety zones before the rule is published in final form. The Coast 
Guard will address all comments accordingly, whether through response, 
additional revision to the regulation, or otherwise. Completing the 
full NPRM process would cause an unnecessary delay in publishing 
enforceable safety zones. This interim rule affords the public the 
opportunity to comment while the safety zones are in place but before 
making it a final rule.
    For this year, the rock removal operations could begin again as 
soon as September 15, 2014. The commercial towing vessel industry, 
through RIAC, has been notified that these operations will be conducted 
in future years and the additional restrictions provided by the safety 
zones will be necessary during that work. Other restrictions 
encompassing larger sections of the river have been in place through 
temporary RNAs during the last two work seasons in 2012 and 2013. The 
Coast Guard did not receive any feedback causing us to believe the 
public opposes restrictions for future years to continue facilitating 
safe navigation and commerce during the subsurface rock removal 
operations, being conducted to benefit the towing industry during 
future low water events.
    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 day 
notice would unnecessarily delay the safety zones effective date for 
restrictions that may need to go into effect as soon as September 15, 
2014.

C. 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 safety 
zones.
    The purpose of these safety zones are to protect persons and 
vessels while subsurface rock removal operations are ongoing on the UMR 
from mile 38.0 to mile 46.0 and from mile 78.0 to mile 81.0. The 
removal operations pose significant safety hazards to vessels and 
mariners operating on the UMR. At the previous request of RIAC and 
after reviewing best practices from the previous temporary RNAs in 
effect in 2012 and 2013, the Coast Guard plans to assist in 
facilitating the clearing of vessel queues in future years following 
restricted access on the UMR from mile 38.0 to mile 46.0 and from mile 
78.0 to mile 81.0. For these reasons, the Coast Guard is to 
establishing these safety zones to limit vessel access between mile 
38.0 and mile 46.0, and between mile 78.0 and mile 81.0 on the UMR. 
Once comments to this interim rule are received and addressed, the 
intent is to follow with a final rule. The final rule will address and 
take into account as necessary comments made during comment period for 
this interim rule.

D. Discussion of the Interim Rule

    The Coast Guard is establishing these safety zones for all vessel 
traffic on the UMR from mile 38.0 to mile 46.0, and from mile 78.0 to 
mile 81.0, extending the entire width of the river. These safety zones 
will be enforced based on the actual or planned subsurface rock removal 
operations between mile 38.0 and mile 46.0 and between mile 78.0 and 
mile 81.0. Restrictions and requirements for these safety zones and 
related to approval to transit through these safety zones will be the 
minimum necessary to protect persons, property, and infrastructure from 
the potential hazards associated with low water and subsurface rock 
removal operations. Such restrictions may include, but are not limited 
to, river closures, tow size, tow configuration, vessel/barge draft, 
assist vessels, speed, hours of transit, and one-way traffic. These 
restrictions, in addition to required use of AIS when fitted, and 
vessel reporting previously existed under temporary RNA's (77 FR 75850 
and 78 FR 70222) covering a much broader segment of the UMR. 
Enforcement times and specific restrictions and requirements will be 
announced via Broadcast Notice to Mariners (BNM), through outreach with 
the RIAC, through LNM, or 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. 
Requests to deviate from 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.

E. 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 safety zones for vessels on all waters of the 
UMR from mile 38.0 to mile 46.0, and from mile 78.0 to mile 81.0. The 
safety zones listed in this interim rule will only restrict vessel 
traffic from entering, transiting, or anchoring within specific 
sections of the UMR. Notifications of enforcement times and 
restrictions put into effect for these safety zones will be

[[Page 66625]]

communicated to the marine community via BNM, through outreach with 
RIAC, and through LNMs. Such notices provide the opportunity for 
industry to plan transits accordingly and work around the schedule of 
rock removal operations as necessary. 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. Restrictions under these safety zones 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 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 UMR during USACE contracted subsurface rock removal operations. 
These safety zones will not have a significant economic impact on a 
substantial number of small entities for the following reasons. While 
the safety zones listed in this interim rule will restrict vessel 
traffic from entering, transiting, or anchoring within specific 
sections of the UMR, this rule does allow 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 safety zones and enforcement times will also be made. 
Additionally, deviation from the restrictions may be requested from the 
COTP Ohio Valley 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 (Public Law 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

[[Page 66626]]

of a category of actions that do not individually or cumulatively have 
a significant effect on the human environment. This rule involves 
creation of safety zones from mile 38.0 to mile 46.0, and from mile 
78.0 to mile 81.0 UMR. 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. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

 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 Sec.  165.842 is added to read as follows:


Sec.  165.842  Safety Zone; Upper Mississippi River between mile 38.0 
and mile 46.0, Thebes, IL; and between mile 78.0 and mile 81.0, Grand 
Tower, IL.

    (a) Location. The following areas are safety zones: All waters of 
the Upper Mississippi River from mile 38.0 to mile 46.0, Thebes, IL; 
and from mile 78.0 to mile 81.0, Grand Tower, IL, extending the entire 
width of the river.
    (b) Effective dates. These safety zones are effective beginning 
November 10, 2014. Enforcement times and the requirements of this 
safety zones will be noticed as soon as is practicable before 
subsurface rock removal operations begin, actual notice will be used 
and additional notices made through Broadcast Notices to Mariners 
(BNM), or Local Notices to Mariners (LNM).
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this area is prohibited unless 
authorized by the Captain of the Port (COTP) Ohio Valley or a 
designated representative.
    (2) The Captain of the Port (COTP) Ohio Valley may prescribe, for 
all or specific portions of the safety zones, periods of enforcement 
and minimum operational requirements necessary to enter, transit 
through, or stop within the safety zone in order to preserve safe 
navigation on the Upper Mississippi River during subsurface rock 
removal operations and clearing of vessel queues following rock removal 
operations, including, but not limited to, the required use of assist 
vessels; 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.
    (3) All persons and vessels must comply with any requirement 
prescribed under paragraph (c)(2) of this section.
    (4) Persons or vessels may request an exception from any 
requirement prescribed under paragraph (c)(2) 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)(2) 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: September 16, 2014.
R.V. Timme,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2014-26669 Filed 11-7-14; 8:45 am]
BILLING CODE 9110-04-P