Regulated Navigation Area; Upper Mississippi River, Sabula Railroad Bridge, Mile Marker 535, Sabula, IA, 61323-61326 [2018-25981]
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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
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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);
■
■
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[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:
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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
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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
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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
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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,
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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.
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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
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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
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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
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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:
■
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§ 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
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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
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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:
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]]>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.
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SUMMARY: The Coast Guard established a temporary regulated navigation
area for certain navigable waters of the
[[Page 61324]]
Upper Mississippi River under one of the navigable spans of the Sabula
Railroad Drawbridge at mile marker (MM) 535. The RNA is necessary to
protect persons, vessels, and the marine environment from potential
hazards associated with emergency repair work to the Sabula Railroad
Bridge following a vessel's allision with the bridge. The regulation
applies only to southbound vessel transits through the RNA, and
depending on the water flow as measured from Lock and Dam 12, this
regulation either prohibits transit or establishes operating
requirements unless a deviation is authorized by the Captain of the
Port Sector Upper Mississippi River or a designated representative.
DATES: This rule is effective from November 29, 2018 through November
30, 2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0917 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander Kody Stitz, Sector Upper Mississippi
River Prevention Department U.S. Coast Guard; telephone 314-269-2568,
email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Sector Upper Mississippi River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
On September 16, 2018, a vessel allided with the Sabula Railroad
Drawbridge and immediate action was needed to respond to the potential
hazards associated with emergency bridge repairs. On September 28,
2018, the Coast Guard published a temporary final rule; request for
comments titled Regulated Navigation Area; Upper Mississippi River,
Sabula Railroad Drawbridge, Mile Marker 535, Sabula, IA (83 FR 48954).
There we stated why we issued the temporary final rule, and invited
comments on our proposed regulatory action related to the operational
restrictions in the regulated navigation area (RNA). During the comment
period that ended on October 15, 2018, we received two comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be contrary to public interest because immediate action
is needed to respond to the potential safety hazards associated with
emergency bridge repairs.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Eighth District Commander has determined that potential
hazards associated with emergency bridge repairs following an allision
will be a safety concern for vessels transiting southbound through the
right descending span, also known as Iowa span, of the Sabula Railroad
Drawbridge. This rule is necessary to protect persons, vessels, and the
marine environment on the navigable waters of the Upper Mississippi
River while the bridge is being repaired. The duration of this rule is
intended to cover the period of emergency repairs.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received two comments on our temporary final
rule published on September 28, 2018. One comment was unrelated to the
substance of the rule, and one comment was not in favor of the rule.
The commenter not in favor of the rule disagreed that any navigation
should be allowed through the right descending bank span, also known as
the Iowa span, of the Sabula Railroad Drawbridge at mile marker (MM)
535 until the rest pier repairs were ``substantial[ly] complet[ed].''
The commenter stated that the Coast Guard failed to engage with
Canadian Pacific Railway engineers to evaluate safety concerns, and
expressed general dissatisfaction that the Coast Guard's risk analysis
was not fairly balanced against the elevated risks to the bridge pier
or potential impact to railroad traffic.
The Coast Guard respectfully disagrees. As a preliminary matter,
our rule does provide for a prohibition of southbound navigation under
the Iowa span under certain conditions. Moreover, because the emergency
repairs are necessary only for the rest pier, rather than the actual
bridge support piers, a total closure of waterway traffic may not be
necessary under all conditions. The Coast Guard inspected the initial
damage to the rest pier, and has been engaged with the bridge owner,
the repair contractor, and vessel operators since the initial incident
on September 16, 2018. Other than requesting a total closure of the
Iowa span and expressing disagreement with the Coast Guard's rule
generally, Canadian Pacific Railway did not present any facts, data, or
engineering analysis to the Coast Guard to support why a total closure
is necessary, or propose alternate vessel operating requirements.
Although the repairs have been substantially completed, Canadian
Pacific Railway engineers may contact the Sector Upper Mississippi
River at any time with further information. There are no changes in
regulatory text of this rule from the temporary final rule.
This rule establishes a temporary regulated navigation area from
September 21, 2018 through November 30, 2018, or until the emergency
bridge repairs are completed, whichever occurs first. The regulated
area covers all navigable waters of the Upper Mississippi River under
the right descending bank span, also known as the Iowa span, of the
Sabula Railroad Drawbridge at mile marker (MM) 535. This rule applies
only to southbound vessel transits through the RNA, and depending on
the water flow as measured from Lock and Dam 12, this regulation either
prohibits transit or establishes operating requirements unless a
deviation is authorized by the Captain of the Port Sector Upper
Mississippi River or a designated representative.
When the water flow rate as measured from Lock and Dam 12 is
100kcfs or greater, vessels are prohibited from transiting southbound
through the RNA unless authorized by the Captain of the Port Sector
Upper Mississippi River (COTP) or a designated representative. When the
water flow rate as measured from Lock and Dam 12 is less than 100kcfs,
vessels may transit southbound through the RNA only if navigating at
their slowest safe speed and avoiding contact with any part of the
Sabula Railroad Drawbridge and the unprotected rest pier located on the
right descending side of the Sabula Railroad Drawbridge.
When the water flow rate as measured from Lock and Dam 12 is less
than 100kcfs, vessels engaged in towing may transit southbound through
the RNA only if the size of the tow does not exceed 15 barges, the
towing vessel possesses a minimum of 250 horsepower per loaded barge in
the tow, and the towing vessel uses an assist vessel of at least 1,000
horsepower when pushing three or more barges. If an assist vessel is
required by this rule,
[[Page 61325]]
the assist vessel and the towing vessel must discuss a plan to transit
through the RNA before doing so and both the assist vessel and the
towing vessel must be capable of continuous two-way voice communication
during the transit.
The COTP or a designated representative may review, on a case-by-
case basis, alternatives to the minimum operating or towing
requirements set forth in this rule and may approve a deviation from
these requirements should they provide an equivalent level of safety.
The COTP or a designated representative may determine, on a case-by-
case basis, that although the conditions triggering the RNA may be met,
the current potential hazards do not require that each requirement of
the RNA be enforced and that only certain of the above-prescribed
restrictions are necessary under the circumstances. The COTP or a
designated representative may consider environmental factors, the water
flow rate at Lock and Dam 12, mitigating safety factors, and the
completion progress of the bridge repairs among other factors. The COTP
or a designated representative will broadcast notice of such
determination and any subsequent changes. Notice that these vessel
operational conditions are anticipated to be put into effect, or are in
effect, will be given by Broadcast Notice to Mariners, Local Notices to
Mariners, Marine Safety Information Broadcasts, and/or actual notice,
as appropriate.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the limited
applicability of the rule, the availability of an alternate route, and
the ability of the COTP to issue a deviation from the requirements of
this rule or suspend enforcement of this rule on a case-by-case basis.
This rule only affects southbound vessel transits through the RNA;
northbound vessels may transit the RNA at any time without
restrictions. In addition, the regulated area only covers the navigable
waters under the span of the Sabula Railroad Drawbridge that was
damaged in the allision, the right descending span, or Iowa span, of
the bridge. Vessels may transit north or southbound through the left
descending span, or Illinois span, at any time without restriction.
Finally, this rule allows vessels to seek permission to transit through
the RNA and/or deviate from the operating requirements, and also allows
the COTP to suspend enforcement of particular provisions of the RNA
under appropriate circumstances.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
While some owners or operators of vessels intending to transit the
temporary regulated navigation area may be small entities, for the
reasons stated in section V.A above, this rule will not have a
significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the
[[Page 61326]]
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and
have determined that this action is one of a category of actions that
do not individually or cumulatively have a significant effect on the
human environment. This rule involves a regulated navigation area
lasting approximately two months that prohibits entry or establishes
vessel operating requirements for southbound transits through the right
descending span of the Sabula Railroad Drawbridge on the Upper
Mississippi River while emergency repairs are made to the bridge. It is
categorically excluded from further review under paragraph L60 (d) of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A
Record of Environmental Consideration supporting this determination is
available in the docket where indicated under ADDRESSES.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.T08-0917 to read as follows:
Sec. 165.T08-0917 Regulated Navigation Area; Upper Mississippi River,
Sabula Railroad Drawbridge, Mile Marker 535, Sabula, IA.
(a) Location. The following area is a regulated navigation area
(RNA): All navigable waters of the Upper Mississippi River under the
right descending bank span, also known as the Iowa span, of the Sabula
Railroad Drawbridge at mile marker (MM) 535.
(b) Effective period. This section is effective from September 21,
2018 through November 30, 2018, or until the emergency bridge repairs
are completed, whichever occurs first.
(c) Applicability. This section only applies to vessels transiting
southbound through the RNA.
(d) Regulations. (1) In accordance with the general regulations
contained in 33 CFR 165.11, and 165.13, when the water flow rate as
measured from Lock and Dam 12 is 100 KCFS or greater vessels are
prohibited from transiting southbound through the RNA unless authorized
by the Captain of the Port Sector Upper Mississippi River (COTP) or a
designated representative.
(2) When the water flow rate as measured from Lock and Dam 12 is
less than 100 kcfs, vessels may transit southbound through the RNA only
under the following conditions:
(i) Vessels shall operate at their slowest safe speed.
(ii) Vessels avoid contacting any part of the Sabula Railroad
Drawbridge and the unprotected rest pier located on the right
descending side of the Sabula Railroad Drawbridge.
(3) When the water flow rate as measured from Lock and Dam 12 is
less than 100 kcfs, vessels engaged in towing may transit southbound
through the RNA only under the following conditions:
(i) The size of the tow does not exceed 15 barges; and
(ii) The towing vessel possesses a minimum of 250 horsepower per
loaded barge in tow, and
(iii) When pushing more than two barges, an assist vessel of at
least 1,000 horsepower must be utilized.
(A) Prior to entering the RNA, the assist tow vessel and the
primary tow vessel shall discuss a plan to transit through the bridge,
and
(B) Both the primary and assist towing vessel shall be capable of
continuous two way voice communication while transiting through the
bridge.
(4) If an assist vessel is required under this section, before
entering the RNA:
(i) The assist vessel and the tow vessel shall discuss a plan to
transit through the bridge, and
(ii) Both the assist vessel and the towing vessel shall be capable
of continuous two-way voice communication while transiting through the
bridge.
(5) The COTP or a designated representative may review, on a case-
by-case basis, alternatives to the minimum operating or towing
requirements and conditions set forth in paragraphs (d)(2)-(d)(4) of
this section and may approve a deviation to these requirements and
conditions should they provide an equivalent level of safety.
(6) The COTP or a designated representative may determine, on a
case-by-case basis, that although the conditions triggering the RNA may
be met, the current potential hazards do not require that each
requirement of the RNA be enforced and that only certain of the above-
prescribed restrictions are necessary under the circumstances. The COTP
or a designated representative may consider environmental factors, the
water flow rate at Lock and Dam 12, mitigating safety factors, and the
completion progress of bridge the repairs among other factors. The COTP
or a designated representative shall broadcast such notice of such
determination and any changes under the provisions of paragraph (e).
(e) Notice of requirements. Notice that these vessel operational
conditions are anticipated to be put into effect, or are in effect,
will be given by Broadcast Notice to Mariners, Local Notices to
Mariners, and/or actual notice, as appropriate.
Dated: November 15, 2018.
P.F. Thomas,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2018-25981 Filed 11-28-18; 8:45 am]
BILLING CODE 9110-04-P
