Regulated Navigation Area; Upper Mississippi River, Sabula Railroad Bridge, Mile Marker 535, Sabula, IA, 61323-61326 [2018-25981]

Download as PDF Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Rules and Regulations 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction. Executive Order 13132, Federalism This action does not have federalism implications warranting the application of Executive Order 13132. This action does not have substantial direct effects 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. khammond on DSK30JT082PROD with RULES Executive Order 13175, Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications warranting the application of Executive Order 13175. The action 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. Administrative Procedure Act The CSA provides for an expedited scheduling action where control is required by the United States obligations under international treaties, conventions, or protocols. 21 U.S.C. 811(d)(1). If control is required pursuant to such international treaty, convention, or protocol, the Attorney General must issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings or procedures otherwise required for scheduling actions. Id. To the extent that 21 U.S.C. 811(d)(1) directs that if control is required by the United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, scheduling actions shall be issued by order (as compared to scheduling pursuant to 21 U.S.C. 811(a) by rule), the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this scheduling action. In the alternative, even if this action does constitute ‘‘rule making’’ under 5 U.S.C. 551(5), this action is exempt from the notice and comment requirements of 5 U.S.C. 553 pursuant to 21 U.S.C. 553(a)(1) as an action involving a foreign affairs function of the United States given that this action is being done in accordance with 21 U.S.C. 811(d)(1)’s requirement VerDate Sep<11>2014 15:46 Nov 28, 2018 Jkt 247001 that the United States comply with its obligations under the specified international agreements. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) applies to rules that are subject to notice and comment under section 553(b) of the APA or any other law. As explained above, the CSA exempts this final order from notice and comment. Consequently, the RFA does not apply to this action. Paperwork Reduction Act of 1995 This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501–3521. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Congressional Review Act This action is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. This order will not result in: ‘‘an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic and export markets.’’ However, pursuant to the CRA, the DEA has submitted a copy of this final order to both Houses of Congress and to the Comptroller General. List of Subjects in 21 CFR Part 1308 Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements. For the reasons set out above, the DEA amends 21 CFR part 1308 as follows: 61323 c. Redesignate paragraphs (b)(46) through (b)(56) as (b)(50) through (b)(60); ■ d. Redesignate paragraphs (b)(32) through (b)(45) as (b)(35) through (b)(48); ■ e. Redesignate paragraphs (b)(4) through (31) as (b)(5) through (32); ■ f. Add new paragraphs (b)(4), (b)(33), (b)(34), (b)(49), and (b)(61); ■ g. Remove and reserve paragraphs (h)(5), (h)(13), (h)(14), (h)(20), and (h)(29). The revision and additions to read as follows: ■ § 1308.11 Schedule I. * * * * * (b) * * * (4) Acryl fentanyl (N-(1phenethylpiperidin-4-yl)-Nphenylacrylamide; other name: acryloylfentanyl) . . . 9811 * * * * * (33) 4-Fluoroisobutyryl fentanyl (N-(4fluorophenyl)-N-(1-phenethylpiperidin4-yl)isobutyramide; other name: parafluoroisobutyryl fentanyl) . . . 9824 (34) Furanyl fentanyl (N-(1phenethylpiperidin-4-yl)-Nphenylfuran-2-carboxamide) . . . 9834 * * * * * (49) Ocfentanil (N-(2-fluorophenyl)-2methoxy-N-(1-phenethylpiperidin-4yl)acetamide) . . . 9838 * * * * * (61) Tetrahydrofuranyl fentanyl (N-(1phenethylpiperidin-4-yl)-Nphenyltetrahydrofuran-2-carboxamide) . . . 9843 * * * * * Dated: November 26, 2018. Uttam Dhillon, Acting Administrator. [FR Doc. 2018–26045 Filed 11–28–18; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF HOMELAND SECURITY Coast Guard PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 33 CFR Part 165 ■ 1. The authority citation for part 1308 continues to read as follows: RIN 1625–AA11 Authority: 21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted. Regulated Navigation Area; Upper Mississippi River, Sabula Railroad Bridge, Mile Marker 535, Sabula, IA 2. In § 1308.11: a. Remove from paragraph (b) introductory text the term ‘‘(b)(34)’’ and add in its place the term ‘‘(b)(39)’’; ■ b. Redesignate paragraphs (b)(57) through (b)(60) as (b)(62) through (b)(65); ■ ■ PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 [Docket Number USCG–2018–0917] Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: The Coast Guard established a temporary regulated navigation area for certain navigable waters of the SUMMARY: E:\FR\FM\29NOR1.SGM 29NOR1 61324 Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Rules and Regulations 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. 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 Kody.J.Stitz@uscg.mil. SUPPLEMENTARY INFORMATION: DATES: 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 § Section U.S.C. United States Code khammond on DSK30JT082PROD with RULES 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 VerDate Sep<11>2014 15:46 Nov 28, 2018 Jkt 247001 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 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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, E:\FR\FM\29NOR1.SGM 29NOR1 Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Rules and Regulations 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-bycase 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. khammond on DSK30JT082PROD with RULES 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 VerDate Sep<11>2014 15:46 Nov 28, 2018 Jkt 247001 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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 61325 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 E:\FR\FM\29NOR1.SGM 29NOR1 61326 Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Rules and Regulations 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 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. 2. Add § 165.T08–0917 to read as follows: ■ khammond on DSK30JT082PROD with RULES § 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 VerDate Sep<11>2014 15:46 Nov 28, 2018 Jkt 247001 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-bycase 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 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2016–0711; FRL–9986–61– Region 9] Air Plan Approval; California; South Coast Air Quality Management District Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve a revision to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) from architectural coatings. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act). DATES: This rule will be effective on December 31, 2018. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2016–0711. All documents in the docket are listed on SUMMARY: E:\FR\FM\29NOR1.SGM 29NOR1

Agencies

[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.

-----------------------------------------------------------------------

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