[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)]
[Rules and Regulations]
[Pages 11885-11887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03331]


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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: Final rule.

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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 on March 5, 2015.

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

[[Page 11886]]

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 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.
    On November 10, 2014, an interim rule was published in the Federal 
Register (79 FR 66622). This interim rule was effective upon 
publication without prior notice through publication in the Federal 
Register, but also invited comments regarding the creation of permanent 
safety zones before the rule was published in final form. The Coast 
Guard received no comments on the interim rule and no requests for 
public meeting. No public meetings were held. No changes were made to 
the rule as it was published in the interim rule.

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 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.

C. Discussion of Comments, Changes and the Final Rule

    No comments were received by the Coast Guard on this rule. No 
changes to the rule have been made from the interim rule and request 
for comments.

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 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 final 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 
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 final 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 (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

[[Page 11887]]

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 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 are available in 
the docket where 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.

    Accordingly, the interim rule amending 33 CFR part 165 that 
published at 77 FR 75850 on December 26, 2012, is adopted as a final 
rule without change.

    Dated: December 29, 2014.
R.V. Timme,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2015-03331 Filed 3-4-15; 8:45 am]
 BILLING CODE 9110-04-P