[Federal Register Volume 83, Number 230 (Thursday, November 29, 2018)]
[Rules and Regulations]
[Pages 61323-61326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25981]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0917]
RIN 1625-AA11


Regulated Navigation Area; Upper Mississippi River, Sabula 
Railroad Bridge, Mile Marker 535, Sabula, IA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard established a temporary regulated navigation 
area for certain navigable waters of the

[[Page 61324]]

Upper Mississippi River under one of the navigable spans of the Sabula 
Railroad Drawbridge at mile marker (MM) 535. The RNA is necessary to 
protect persons, vessels, and the marine environment from potential 
hazards associated with emergency repair work to the Sabula Railroad 
Bridge following a vessel's allision with the bridge. The regulation 
applies only to southbound vessel transits through the RNA, and 
depending on the water flow as measured from Lock and Dam 12, this 
regulation either prohibits transit or establishes operating 
requirements unless a deviation is authorized by the Captain of the 
Port Sector Upper Mississippi River or a designated representative.

DATES: This rule is effective from November 29, 2018 through November 
30, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0917 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander Kody Stitz, Sector Upper Mississippi 
River Prevention Department U.S. Coast Guard; telephone 314-269-2568, 
email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Upper Mississippi River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On September 16, 2018, a vessel allided with the Sabula Railroad 
Drawbridge and immediate action was needed to respond to the potential 
hazards associated with emergency bridge repairs. On September 28, 
2018, the Coast Guard published a temporary final rule; request for 
comments titled Regulated Navigation Area; Upper Mississippi River, 
Sabula Railroad Drawbridge, Mile Marker 535, Sabula, IA (83 FR 48954). 
There we stated why we issued the temporary final rule, and invited 
comments on our proposed regulatory action related to the operational 
restrictions in the regulated navigation area (RNA). During the comment 
period that ended on October 15, 2018, we received two comments.
    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 the effective date of 
this rule would be contrary to public interest because immediate action 
is needed to respond to the potential safety hazards associated with 
emergency bridge repairs.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Eighth District Commander has determined that potential 
hazards associated with emergency bridge repairs following an allision 
will be a safety concern for vessels transiting southbound through the 
right descending span, also known as Iowa span, of the Sabula Railroad 
Drawbridge. This rule is necessary to protect persons, vessels, and the 
marine environment on the navigable waters of the Upper Mississippi 
River while the bridge is being repaired. The duration of this rule is 
intended to cover the period of emergency repairs.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our temporary final 
rule published on September 28, 2018. One comment was unrelated to the 
substance of the rule, and one comment was not in favor of the rule. 
The commenter not in favor of the rule disagreed that any navigation 
should be allowed through the right descending bank span, also known as 
the Iowa span, of the Sabula Railroad Drawbridge at mile marker (MM) 
535 until the rest pier repairs were ``substantial[ly] complet[ed].'' 
The commenter stated that the Coast Guard failed to engage with 
Canadian Pacific Railway engineers to evaluate safety concerns, and 
expressed general dissatisfaction that the Coast Guard's risk analysis 
was not fairly balanced against the elevated risks to the bridge pier 
or potential impact to railroad traffic.
    The Coast Guard respectfully disagrees. As a preliminary matter, 
our rule does provide for a prohibition of southbound navigation under 
the Iowa span under certain conditions. Moreover, because the emergency 
repairs are necessary only for the rest pier, rather than the actual 
bridge support piers, a total closure of waterway traffic may not be 
necessary under all conditions. The Coast Guard inspected the initial 
damage to the rest pier, and has been engaged with the bridge owner, 
the repair contractor, and vessel operators since the initial incident 
on September 16, 2018. Other than requesting a total closure of the 
Iowa span and expressing disagreement with the Coast Guard's rule 
generally, Canadian Pacific Railway did not present any facts, data, or 
engineering analysis to the Coast Guard to support why a total closure 
is necessary, or propose alternate vessel operating requirements. 
Although the repairs have been substantially completed, Canadian 
Pacific Railway engineers may contact the Sector Upper Mississippi 
River at any time with further information. There are no changes in 
regulatory text of this rule from the temporary final rule.
    This rule establishes a temporary regulated navigation area from 
September 21, 2018 through November 30, 2018, or until the emergency 
bridge repairs are completed, whichever occurs first. The regulated 
area covers all navigable waters of the Upper Mississippi River under 
the right descending bank span, also known as the Iowa span, of the 
Sabula Railroad Drawbridge at mile marker (MM) 535. This rule applies 
only to southbound vessel transits through the RNA, and depending on 
the water flow as measured from Lock and Dam 12, this regulation either 
prohibits transit or establishes operating requirements unless a 
deviation is authorized by the Captain of the Port Sector Upper 
Mississippi River or a designated representative.
    When the water flow rate as measured from Lock and Dam 12 is 
100kcfs or greater, vessels are prohibited from transiting southbound 
through the RNA unless authorized by the Captain of the Port Sector 
Upper Mississippi River (COTP) or a designated representative. When the 
water flow rate as measured from Lock and Dam 12 is less than 100kcfs, 
vessels may transit southbound through the RNA only if navigating at 
their slowest safe speed and avoiding contact with any part of the 
Sabula Railroad Drawbridge and the unprotected rest pier located on the 
right descending side of the Sabula Railroad Drawbridge.
    When the water flow rate as measured from Lock and Dam 12 is less 
than 100kcfs, vessels engaged in towing may transit southbound through 
the RNA only if the size of the tow does not exceed 15 barges, the 
towing vessel possesses a minimum of 250 horsepower per loaded barge in 
the tow, and the towing vessel uses an assist vessel of at least 1,000 
horsepower when pushing three or more barges. If an assist vessel is 
required by this rule,

[[Page 61325]]

the assist vessel and the towing vessel must discuss a plan to transit 
through the RNA before doing so and both the assist vessel and the 
towing vessel must be capable of continuous two-way voice communication 
during the transit.
    The COTP or a designated representative may review, on a case-by-
case basis, alternatives to the minimum operating or towing 
requirements set forth in this rule and may approve a deviation from 
these requirements should they provide an equivalent level of safety. 
The COTP or a designated representative may determine, on a case-by-
case basis, that although the conditions triggering the RNA may be met, 
the current potential hazards do not require that each requirement of 
the RNA be enforced and that only certain of the above-prescribed 
restrictions are necessary under the circumstances. The COTP or a 
designated representative may consider environmental factors, the water 
flow rate at Lock and Dam 12, mitigating safety factors, and the 
completion progress of the bridge repairs among other factors. The COTP 
or a designated representative will broadcast notice of such 
determination and any subsequent changes. Notice that these vessel 
operational conditions are anticipated to be put into effect, or are in 
effect, will be given by Broadcast Notice to Mariners, Local Notices to 
Mariners, Marine Safety Information Broadcasts, and/or actual notice, 
as appropriate.

V. 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 and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the limited 
applicability of the rule, the availability of an alternate route, and 
the ability of the COTP to issue a deviation from the requirements of 
this rule or suspend enforcement of this rule on a case-by-case basis. 
This rule only affects southbound vessel transits through the RNA; 
northbound vessels may transit the RNA at any time without 
restrictions. In addition, the regulated area only covers the navigable 
waters under the span of the Sabula Railroad Drawbridge that was 
damaged in the allision, the right descending span, or Iowa span, of 
the bridge. Vessels may transit north or southbound through the left 
descending span, or Illinois span, at any time without restriction. 
Finally, this rule allows vessels to seek permission to transit through 
the RNA and/or deviate from the operating requirements, and also allows 
the COTP to suspend enforcement of particular provisions of the RNA 
under appropriate circumstances.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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.
    While some owners or operators of vessels intending to transit the 
temporary regulated navigation area may be small entities, for the 
reasons stated in section V.A above, this rule will not have a 
significant economic impact on any vessel owner or operator.
    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 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the

[[Page 61326]]

National Environmental Policy Act of 1969 (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 a regulated navigation area 
lasting approximately two months that prohibits entry or establishes 
vessel operating requirements for southbound transits through the right 
descending span of the Sabula Railroad Drawbridge on the Upper 
Mississippi River while emergency repairs are made to the bridge. It is 
categorically excluded from further review under paragraph L60 (d) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

G. 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.

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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T08-0917 to read as follows:


Sec.  165.T08-0917  Regulated Navigation Area; Upper Mississippi River, 
Sabula Railroad Drawbridge, Mile Marker 535, Sabula, IA.

    (a) Location. The following area is a regulated navigation area 
(RNA): All navigable waters of the Upper Mississippi River under the 
right descending bank span, also known as the Iowa span, of the Sabula 
Railroad Drawbridge at mile marker (MM) 535.
    (b) Effective period. This section is effective from September 21, 
2018 through November 30, 2018, or until the emergency bridge repairs 
are completed, whichever occurs first.
    (c) Applicability. This section only applies to vessels transiting 
southbound through the RNA.
    (d) Regulations. (1) In accordance with the general regulations 
contained in 33 CFR 165.11, and 165.13, when the water flow rate as 
measured from Lock and Dam 12 is 100 KCFS or greater vessels are 
prohibited from transiting southbound through the RNA unless authorized 
by the Captain of the Port Sector Upper Mississippi River (COTP) or a 
designated representative.
    (2) When the water flow rate as measured from Lock and Dam 12 is 
less than 100 kcfs, vessels may transit southbound through the RNA only 
under the following conditions:
    (i) Vessels shall operate at their slowest safe speed.
    (ii) Vessels avoid contacting any part of the Sabula Railroad 
Drawbridge and the unprotected rest pier located on the right 
descending side of the Sabula Railroad Drawbridge.
    (3) When the water flow rate as measured from Lock and Dam 12 is 
less than 100 kcfs, vessels engaged in towing may transit southbound 
through the RNA only under the following conditions:
    (i) The size of the tow does not exceed 15 barges; and
    (ii) The towing vessel possesses a minimum of 250 horsepower per 
loaded barge in tow, and
    (iii) When pushing more than two barges, an assist vessel of at 
least 1,000 horsepower must be utilized.
    (A) Prior to entering the RNA, the assist tow vessel and the 
primary tow vessel shall discuss a plan to transit through the bridge, 
and
    (B) Both the primary and assist towing vessel shall be capable of 
continuous two way voice communication while transiting through the 
bridge.
    (4) If an assist vessel is required under this section, before 
entering the RNA:
    (i) The assist vessel and the tow vessel shall discuss a plan to 
transit through the bridge, and
    (ii) Both the assist vessel and the towing vessel shall be capable 
of continuous two-way voice communication while transiting through the 
bridge.
    (5) The COTP or a designated representative may review, on a case-
by-case basis, alternatives to the minimum operating or towing 
requirements and conditions set forth in paragraphs (d)(2)-(d)(4) of 
this section and may approve a deviation to these requirements and 
conditions should they provide an equivalent level of safety.
    (6) The COTP or a designated representative may determine, on a 
case-by-case basis, that although the conditions triggering the RNA may 
be met, the current potential hazards do not require that each 
requirement of the RNA be enforced and that only certain of the above-
prescribed restrictions are necessary under the circumstances. The COTP 
or a designated representative may consider environmental factors, the 
water flow rate at Lock and Dam 12, mitigating safety factors, and the 
completion progress of bridge the repairs among other factors. The COTP 
or a designated representative shall broadcast such notice of such 
determination and any changes under the provisions of paragraph (e).
    (e) Notice of requirements. Notice that these vessel operational 
conditions are anticipated to be put into effect, or are in effect, 
will be given by Broadcast Notice to Mariners, Local Notices to 
Mariners, and/or actual notice, as appropriate.

    Dated: November 15, 2018.
P.F. Thomas,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2018-25981 Filed 11-28-18; 8:45 am]
 BILLING CODE 9110-04-P