Safety Zone, Upper Mississippi River MM 35.0 to MM 55.0; Thebes, IL and Cape Girardeau, MO, and MM 75.0 to MM 85.0; Grand Tower, IL, 76408-76411 [2012-31136]
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76408
Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Rules and Regulations
requires no further agency action or
analysis.
Indian Tribal Governments, requires no
further agency action or analysis.
C. The Treasury and General
Government Appropriations Act of
1999: Assessment of Federal
Regulations and Policies on Families
This final rule will have no effect on
family well-being or stability, marital
commitment, parental rights or
authority, or income or poverty of
families and children. Accordingly,
section 654 of the Treasury and General
Government Appropriations Act of 1999
(5 U.S.C. 601 note) requires no further
agency action, analysis, or assessment.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
D. Executive Order 12630: Government
Actions and Interference With
Constitutionally Protected Property
Rights
This final rule will not implement a
policy with takings implications.
Accordingly, Executive Order 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights, requires no further agency action
or analysis.
E. Executive Order 12988: Civil Justice
Reform
This final rule was drafted and
reviewed in accordance with Executive
Order 12988, Civil Justice Reform. This
final rule was written to provide a clear
legal standard for affected conduct and
was carefully reviewed to eliminate
drafting errors and ambiguities, so as to
minimize litigation and undue burden
on the Federal court system. MSHA has
determined that this final rule meets the
applicable standards provided in
section 3 of Executive Order 12988.
srobinson on DSK4SPTVN1PROD with
F. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This final rule will have no adverse
impact on children. Accordingly,
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks, as amended by
Executive Orders 13229 and 13296,
requires no further agency action or
analysis.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This final rule does not have ‘‘tribal
implications’’ because it does not have
substantial direct effects 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.
Accordingly, Executive Order 13175,
Consultation and Coordination with
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This final rule has been reviewed for
its impact on the supply, distribution,
and use of energy because it applies to
the coal mining industry. MSHA has
concluded that the adjustment of civil
monetary penalties to keep pace with
inflation and thus maintain the
incentive for operators to maintain safe
and healthful workplaces is not a
significant energy action because it is
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy. Accordingly, Executive Order
13211 requires no further Agency action
or analysis.
I. Executive Order 13272: Proper
Consideration of Small Entities in
Agency Rulemaking
MSHA has reviewed the final rule to
assess and take appropriate account of
its potential impact on small businesses,
small governmental jurisdictions, and
small organizations. This rule does not
establish any new burdens. It makes the
necessary adjustments as required by
the Inflation Adjustment Act and is
therefore consistent with the provisions
of E.O. 13272.
J. Congressional Review Act
The Congressional Review Act,
codified at 5 U.S.C. 801 et seq., provides
generally that ‘‘major rules’’ cannot take
effect until 60 days after publication of
the rule in the Federal Register and
delivery of the rule to each House of
Congress and to the U.S. Comptroller
General. MSHA has concluded, in
agreement with the Office of
Information and Regulatory Affairs at
the Office of Management and Budget
that this rule is not a ‘‘major rule’’ as
defined by the Congressional Review
Act. For this reason, the rule will take
effect on the date indicated.
List of Subjects in 30 CFR Part 100
Mine safety and health, Penalties.
Dated: December 19, 2012.
Joseph A. Main,
Assistant Secretary for Mine Safety and
Health.
Under the authority of the Federal
Mine Safety and Health Act of 1977, as
amended, chapter I of title 30, Code of
Federal Regulations, part 100 is
amended as follows:
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PART 100—CRITERIA AND
PROCEDURES FOR PROPOSED
ASSESSMENT OF CIVIL PENALTIES
1. The authority citation for part 100
continues to read as follows:
■
Authority: 30 U.S.C. 815, 820, 957.
2. Amend § 100.4 by revising
paragraph (c) introductory text to read
as follows:
■
§ 100.4 Unwarrantable failure and
immediate notification.
*
*
*
*
*
(c) The penalty for failure to provide
timely notification to the Secretary
under section 103(j) of the Mine Act
will be not less than $5,000 and not
more than $65,000 for the following
accidents:
*
*
*
*
*
■ 3. Amend § 100.5 by revising
paragraph (e) to read as follows:
§ 100.5 Determination of penalty amount;
special assessment.
*
*
*
*
*
(e) Violations that are deemed to be
flagrant under section 110(b)(2) of the
Mine Act may be assessed a civil
penalty of not more than $242,000. For
purposes of this section, a flagrant
violation means ‘‘a reckless or repeated
failure to make reasonable efforts to
eliminate a known violation of a
mandatory health or safety standard that
substantially and proximately caused, or
reasonably could have been expected to
cause, death or serious bodily injury.’’
[FR Doc. 2012–30963 Filed 12–27–12; 8:45 am]
BILLING CODE 4510–43–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2012–0998]
RIN 1625–AA00
Safety Zone, Upper Mississippi River
MM 35.0 to MM 55.0; Thebes, IL and
Cape Girardeau, MO, and MM 75.0 to
MM 85.0; Grand Tower, IL
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
establishing a temporary safety zone for
all waters of the Upper Mississippi
River, extending the entire width
between miles 35.0 to 55.0, and miles
75.0 to 85.0 from December 15, 2012
until March 31, 2013. This safety zone
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Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Rules and Regulations
is needed to protect persons, property
and infrastructure from the potential
damage and safety hazards associated
with contractor operations for the US
Army Corps of Engineers to remove
underwater rock pinnacles from the
Upper Mississippi River. Removal of the
underwater rock pinnacles is vital to
ensuring the safe navigation of vessels
in these stretches of river in low water
situations. Entry into this zone is
prohibited unless specifically
authorized by the Captain of the Port
Ohio Valley or a designated
representative.
This rule is effective in the CFR
on December 28, 2012 through March
31, 2013. This rule is effective with
actual notice for purposes of
enforcement on December 15, 2012.
This rule will remain in effect through
March 2013.
ADDRESSES: Documents mentioned in
this preamble are part of docket USCG–
2012–0998. To view documents
mentioned in this preamble as being
available in the docket, go to https://
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 9:00
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 Lieutenant Dan
McQuate, Marine Safety Unit Paducah
Waterways Management Branch, U.S.
Coast Guard; telephone 270–442–1621,
email: Daniel.J.McQuate@uscg.mil. If
you have questions on viewing or
submitting material to the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
DATES:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
USACE United States Army Corps of
Engineers
RIAC River Industry Action Committee
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A. Regulatory History and 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
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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.
The US Army Corps of Engineers
(USACE) originally planned to have a
contractor remove underwater rocks in
the Thebes, IL and Grand Tower, IL
areas on the Upper Mississippi River
beginning in mid-February 2013. The
operation was planned to occur in the
UMR from mile 38.0 to mile 46.0, and
mile 78.0 to mile 80.0. This operation
also included the loading of explosives
onto vessels at any number of facilities
in Cape Girardeau, MO, Thebes, IL, and/
or Grand Tower, IL.
The Coast Guard was planning to
publish a notice of proposed rulemaking
for this zone. However, on Wednesday
December 5, 2012, the USACE St. Louis
District notified the Coast Guard that
due to extreme low water, and the role
that would play in restricting vessel
drafts on the Upper Mississippi River in
Thebes, IL, they were able to award a
contract to begin rock removal
operations no later than December 15,
2012, and this removal operation could
continue to March 31, 2013. Therefore,
there is not sufficient time to publish an
NPRM and receive public comment
before this safety zone would be needed
to protect the public from the hazards
associated with the removal operations.
Delaying this rulemaking to provide a
comment period before implementing
the necessary safety zone would be
impracticable and contrary to the public
interest because it would delay the
immediate action needed to protect
persons, property and infrastructure
from the potential damage and safety
hazards associated with the USACE
contractors underwater rock removal
operations.
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 days notice and delaying
its effective date would be impracticable
and contrary to public interest because
immediate action is needed to protect
persons, property and infrastructure
from the potential damage and safety
hazards associated with the USACE
contractors underwater rock removal
operations.
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76409
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
regulatory safety zones.
The purpose of this safety zone is to
protect persons, property and
infrastructure from the potential damage
and safety hazards associated with
contractor blasting operations for the
USACE to remove underwater rock
pinnacles from the Upper Mississippi
River. Removal of the underwater rock
pinnacles is vital to ensuring the safe
navigation of vessels in these stretches
of river in low water situations. Without
this safety zone the public could be
placed in danger during the loading,
preparation to set, and detonation of
explosives being used during this
operation, and the removal of the debris
following the blasting operations.
C. Discussion of the Rule
The Coast Guard is establishing a
temporary safety zone for all vessels on
the Upper Mississippi River between
miles 35.0 and 55.0, and miles 75.0 and
85.0 from December 15, 2012 until
March 31, 2013. The USACE has
contracted workers to blast underwater
rock pinnacles throughout these
stretches of the river. There is currently
no set schedule for this operation, so the
safety zone will be effective from
December 15, 2012 until March 31,
2013, while the enforcement times and
exact mile markers impacted for each
closure of this safety zone will be
coordinated between the Coast Guard,
USACE, and the River Industry Action
Committee (RIAC). Additionally, the
Coast Guard will provide advanced
notice of enforcement periods via
broadcast notice to mariners and
through coordination with the RIAC.
During the enforcement period, entry
into this zone will be prohibited to all
vessels and persons unless specifically
authorized by the Captain of the Port
(COTP) Sector Ohio Valley or a
designated representative. The COTP
Sector Ohio Valley will consider entry
into and transit through the safety zone
on a case-by-case basis. Any exceptions
to these operational restrictions will
require authorization by the COTP Ohio
Valley or a designated representative.
The COTP or a designated
representative may be contacted by
telephone at 502–779–5422.
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Federal Register / Vol. 77, No. 249 / Friday, December 28, 2012 / Rules and Regulations
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.
issue broadcast notices to mariners to
users of the river. This safety zone will
not have a significant economic impact
on a substantial number of small
entities. Traffic in this area is limited to
almost entirely recreational vessels and
commercial towing vessels.
1. Regulatory Planning and Review
3. Assistance for Small Entities
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. While stretches of the Upper
Mississippi River will be closed to all
vessel traffic during enforcement, this
will be for a short period of time.
Vessels could experience delays
throughout this project, but the
operations will be coordinated to allow
intermittent passage of vessels when
deemed safe.
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 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.
D. Regulatory Analyses
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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 Upper
Mississippi River between miles 35.0
and 55.0, and miles 75.0 and 85.0 from
December 15, 2012 to March 31, 2013.
Traffic in this area is limited almost
entirely to recreational vessels and
commercial towing vessels. All traffic
passage will be prohibited unless
specifically authorized by COTP Ohio
Valley. If this operation is not carried
out, when the Upper Mississippi River
reaches low water levels, the rock
pinnacles that are being removed in this
operation could prohibit all vessel
traffic from safely transiting the area.
Before the activation of the safety zone,
the Coast Guard will coordinate any
closures with the USACE and RIAC, and
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4. 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).
5. 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.
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.
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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 affect 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
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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 which do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves
restricting vessel traffic on a cumulative
30 mile stretch of the UMR to keep
waterway users safe during a USACE
contractor’s rock pinnacle removal
operations. 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 section.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and record keeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
contractors are conducting rock removal
operations. The Captain of the Port
(COTP) Ohio Valley or designated
representatives will provide advance
notice to the public of the enforcement
periods and locations for the safety zone
and of any changes in the effective
period of the safety zone through
broadcast notices to mariners and
through coordination with River
Industry Action Committee.
(d) Regulations. (1) In accordance
with the general regulations in § 165.23
of this part, entry into this zone by all
vessels during the enforcement period is
prohibited unless authorized by the
COTP Ohio Valley or a designated
representative.
(2) Vessels requiring entry into or
passage through the zone must contact
the lead vessel on scene, or Coast Guard
Sector Ohio Valley on VHF–FM channel
13 or 16. The lead vessel on scene will
be announced via broadcast notice to
mariners.
(3) All persons and vessels shall
comply with the instructions of the
COTP Ohio Valley and designated onscene patrol personnel. On-scene patrol
personnel include commissioned,
warrant, and petty officers of the U.S.
Coast Guard.
76411
security zone will be subject to
increased monitoring and boarding
during the enforcement of the security
zone.
DATES: This temporary final rule is
effective from 8:00 a.m. on January 13,
2013 until 12:00 a.m. on January 28,
2013.
ADDRESSES: Documents mentioned in
this preamble are part of docket USCG–
2012–1077. To view documents
mentioned in this preamble as being
available in the docket, go to
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box, and
click ‘‘Search.’’ You may visit the
Docket Management Facility,
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 on this temporary
final rule, call or email LT Adrian
Palomeque, Prevention Department,
Sector Detroit, Coast Guard; telephone
(313) 568–9508, email
Adrian.F.Palomeque@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
Dated: December 12, 2012.
L. W. Hewett,
Captain, U.S. Coast Guard, Captain of the
Port Ohio Valley.
[FR Doc. 2012–31136 Filed 12–27–12; 8:45 am]
Table of Acronyms
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.
BILLING CODE 9110–04–P
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
Coast Guard
■
2. A new temporary § 165.T08–0998 is
added to read as follows:
■
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§ 165.T08–0998 Safety Zone; Upper
Mississippi River MM 35.0 to 55.0, Thebes,
IL and Cape Girardeau, MO, and MM 75.0 to
85.0, Grand Tower, IL.
(a) Location. The following area is a
safety zone: All waters of the Upper
Mississippi River between miles 35.0
and 55.0, extending the entire width of
the river, and all waters of the Upper
Mississippi River between miles 75.0
and 85.0, extending the entire width of
the river.
(b) Effective dates. This safety zone is
effective from December 15, 2012 to
March 31, 2013.
(c) Enforcement Period and
Informational Broadcasts: This safety
zone will only be enforced for certain
periods between the effective dates,
when the Army Corps of Engineer’s
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DEPARTMENT OF HOMELAND
SECURITY
33 CFR Part 165
[Docket No. USCG–2012–1077]
RIN 1625–AA87
Security Zone; 25th Annual North
American International Auto Show,
Detroit River, Detroit, MI
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
establishing a temporary security zone
on the Detroit River, Detroit, Michigan.
This security zone is intended to restrict
vessels from a portion of the Detroit
River in order to ensure the safety and
security of participants, visitors, and
public officials at the 25th Annual
North American International Auto
Show (NAIAS), which is being held at
Cobo Hall in downtown Detroit, MI.
Vessels in close proximity to the
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A. Regulatory History and 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 a
notice of proposed rulemaking (NPRM)
with respect to this rule because doing
so would be impracticable, unnecessary
and contrary to the public interest. The
final details regarding the security
measures associated with this year’s
event were not known to the Coast
Guard with sufficient time for the Coast
Guard to solicit public comments before
the start of the event. Thus, waiting for
a notice and comment period to run
would be impracticable and contrary to
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]]>Agencies
[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76408-76411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31136]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2012-0998]
RIN 1625-AA00
Safety Zone, Upper Mississippi River MM 35.0 to MM 55.0; Thebes,
IL and Cape Girardeau, MO, and MM 75.0 to MM 85.0; Grand Tower, IL
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for
all waters of the Upper Mississippi River, extending the entire width
between miles 35.0 to 55.0, and miles 75.0 to 85.0 from December 15,
2012 until March 31, 2013. This safety zone
[[Page 76409]]
is needed to protect persons, property and infrastructure from the
potential damage and safety hazards associated with contractor
operations for the US Army Corps of Engineers to remove underwater rock
pinnacles from the Upper Mississippi River. Removal of the underwater
rock pinnacles is vital to ensuring the safe navigation of vessels in
these stretches of river in low water situations. Entry into this zone
is prohibited unless specifically authorized by the Captain of the Port
Ohio Valley or a designated representative.
DATES: This rule is effective in the CFR on December 28, 2012 through
March 31, 2013. This rule is effective with actual notice for purposes
of enforcement on December 15, 2012. This rule will remain in effect
through March 2013.
ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2012-0998. To view documents mentioned in this preamble as being
available in the docket, go to https://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 9:00 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 Lieutenant Dan McQuate, Marine Safety
Unit Paducah Waterways Management Branch, U.S. Coast Guard; telephone
270-442-1621, email: Daniel.J.McQuate@uscg.mil. If you have questions
on viewing or submitting material to the docket, call Renee V. Wright,
Program Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
USACE United States Army Corps of Engineers
RIAC River Industry Action Committee
A. Regulatory History and 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 a notice of proposed rulemaking (NPRM)
with respect to this rule.
The US Army Corps of Engineers (USACE) originally planned to have a
contractor remove underwater rocks in the Thebes, IL and Grand Tower,
IL areas on the Upper Mississippi River beginning in mid-February 2013.
The operation was planned to occur in the UMR from mile 38.0 to mile
46.0, and mile 78.0 to mile 80.0. This operation also included the
loading of explosives onto vessels at any number of facilities in Cape
Girardeau, MO, Thebes, IL, and/or Grand Tower, IL.
The Coast Guard was planning to publish a notice of proposed
rulemaking for this zone. However, on Wednesday December 5, 2012, the
USACE St. Louis District notified the Coast Guard that due to extreme
low water, and the role that would play in restricting vessel drafts on
the Upper Mississippi River in Thebes, IL, they were able to award a
contract to begin rock removal operations no later than December 15,
2012, and this removal operation could continue to March 31, 2013.
Therefore, there is not sufficient time to publish an NPRM and receive
public comment before this safety zone would be needed to protect the
public from the hazards associated with the removal operations.
Delaying this rulemaking to provide a comment period before
implementing the necessary safety zone would be impracticable and
contrary to the public interest because it would delay the immediate
action needed to protect persons, property and infrastructure from the
potential damage and safety hazards associated with the USACE
contractors underwater rock removal operations.
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 days
notice and delaying its effective date would be impracticable and
contrary to public interest because immediate action is needed to
protect persons, property and infrastructure from the potential damage
and safety hazards associated with the USACE contractors underwater
rock removal operations.
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
regulatory safety zones.
The purpose of this safety zone is to protect persons, property and
infrastructure from the potential damage and safety hazards associated
with contractor blasting operations for the USACE to remove underwater
rock pinnacles from the Upper Mississippi River. Removal of the
underwater rock pinnacles is vital to ensuring the safe navigation of
vessels in these stretches of river in low water situations. Without
this safety zone the public could be placed in danger during the
loading, preparation to set, and detonation of explosives being used
during this operation, and the removal of the debris following the
blasting operations.
C. Discussion of the Rule
The Coast Guard is establishing a temporary safety zone for all
vessels on the Upper Mississippi River between miles 35.0 and 55.0, and
miles 75.0 and 85.0 from December 15, 2012 until March 31, 2013. The
USACE has contracted workers to blast underwater rock pinnacles
throughout these stretches of the river. There is currently no set
schedule for this operation, so the safety zone will be effective from
December 15, 2012 until March 31, 2013, while the enforcement times and
exact mile markers impacted for each closure of this safety zone will
be coordinated between the Coast Guard, USACE, and the River Industry
Action Committee (RIAC). Additionally, the Coast Guard will provide
advanced notice of enforcement periods via broadcast notice to mariners
and through coordination with the RIAC. During the enforcement period,
entry into this zone will be prohibited to all vessels and persons
unless specifically authorized by the Captain of the Port (COTP) Sector
Ohio Valley or a designated representative. The COTP Sector Ohio Valley
will consider entry into and transit through the safety zone on a case-
by-case basis. Any exceptions to these operational restrictions will
require authorization by the COTP Ohio Valley or a designated
representative. The COTP or a designated representative may be
contacted by telephone at 502-779-5422.
[[Page 76410]]
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. While stretches of the
Upper Mississippi River will be closed to all vessel traffic during
enforcement, this will be for a short period of time. Vessels could
experience delays throughout this project, but the operations will be
coordinated to allow intermittent passage of vessels when deemed safe.
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 Upper Mississippi River between miles 35.0 and 55.0, and miles 75.0
and 85.0 from December 15, 2012 to March 31, 2013. Traffic in this area
is limited almost entirely to recreational vessels and commercial
towing vessels. All traffic passage will be prohibited unless
specifically authorized by COTP Ohio Valley. If this operation is not
carried out, when the Upper Mississippi River reaches low water levels,
the rock pinnacles that are being removed in this operation could
prohibit all vessel traffic from safely transiting the area. Before the
activation of the safety zone, the Coast Guard will coordinate any
closures with the USACE and RIAC, and issue broadcast notices to
mariners to users of the river. This safety zone will not have a
significant economic impact on a substantial number of small entities.
Traffic in this area is limited to almost entirely recreational vessels
and commercial towing vessels.
3. 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 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 calls for no 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 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.
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 affect 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
[[Page 76411]]
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 which do not individually
or cumulatively have a significant effect on the human environment.
This rule involves restricting vessel traffic on a cumulative 30 mile
stretch of the UMR to keep waterway users safe during a USACE
contractor's rock pinnacle removal operations. 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 section.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping 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.
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
2. A new temporary Sec. 165.T08-0998 is added to read as follows:
Sec. 165.T08-0998 Safety Zone; Upper Mississippi River MM 35.0 to
55.0, Thebes, IL and Cape Girardeau, MO, and MM 75.0 to 85.0, Grand
Tower, IL.
(a) Location. The following area is a safety zone: All waters of
the Upper Mississippi River between miles 35.0 and 55.0, extending the
entire width of the river, and all waters of the Upper Mississippi
River between miles 75.0 and 85.0, extending the entire width of the
river.
(b) Effective dates. This safety zone is effective from December
15, 2012 to March 31, 2013.
(c) Enforcement Period and Informational Broadcasts: This safety
zone will only be enforced for certain periods between the effective
dates, when the Army Corps of Engineer's contractors are conducting
rock removal operations. The Captain of the Port (COTP) Ohio Valley or
designated representatives will provide advance notice to the public of
the enforcement periods and locations for the safety zone and of any
changes in the effective period of the safety zone through broadcast
notices to mariners and through coordination with River Industry Action
Committee.
(d) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into this zone by all vessels during
the enforcement period is prohibited unless authorized by the COTP Ohio
Valley or a designated representative.
(2) Vessels requiring entry into or passage through the zone must
contact the lead vessel on scene, or Coast Guard Sector Ohio Valley on
VHF-FM channel 13 or 16. The lead vessel on scene will be announced via
broadcast notice to mariners.
(3) All persons and vessels shall comply with the instructions of
the COTP Ohio Valley and designated on-scene patrol personnel. On-scene
patrol personnel include commissioned, warrant, and petty officers of
the U.S. Coast Guard.
Dated: December 12, 2012.
L. W. Hewett,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2012-31136 Filed 12-27-12; 8:45 am]
BILLING CODE 9110-04-P
