[Federal Register: June 28, 2011 (Volume 76, Number 124)]
[Rules and Regulations]
[Page 37647-37649]
[DOCID:fr28jn11-12]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0511]
RIN 1625-AA00

Safety Zone; Missouri River From the Border Between Montana and
North Dakota

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone on the
specified waters of the Missouri River from the Montana and North
Dakota border to the confluence with the Mississippi River, extending
the entire width of the river. During enforcement periods, vessels must
obtain Captain of the Port authorization to enter the safety zone. This
temporary safety zone is needed to protect the general public, vessels
and tows from destruction, and the levee system from destruction, loss
or injury due to hazards associated with rising flood water. Operation
in this zone is restricted unless specifically authorized by the
Captain of the Port Sector Upper Mississippi River or a designated
representative.

DATES: Effective Date: this rule is effective in the CFR from June 28,
2011 until 11:59 p.m. CDT August 30, 2011, unless terminated earlier.
This rule is effective with actual notice for purposes of enforcement
beginning 12:01 a.m. CDT June 2, 2011.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2011-0511 and are available online
by going to http://www.regulations.gov, inserting USCG-2011-0511 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Documents will also be available for inspection or copying at Coast
Guard Sector Upper Mississippi River, 1222 Spruce Street Suite 7.103,
St. Louis, MO 63103 between 7:30 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or e-mail Lieutenant Commander (LCDR) Scott
Stoermer, Sector Upper Mississippi River, Coast Guard at<PHONE_NUMBER>
or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it would be contrary to public
interest to publish an NPRM as immediate action is necessary to protect
the public and property from the dangers associated with flooding
emergencies.
    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 its effective date would
be contrary to public interest because immediate action is needed to
protect vessels and mariners from the safety hazards associated with
flooding emergencies.

Basis and Purpose

    On June 1, 2011, the Captain of the Port Upper Mississippi River
deemed navigation on the Missouri River unsafe due to severe flooding
and has restricted navigation on the Missouri River, from the border
between Montana and North Dakota at 104.05 degrees west longitude to
the confluence with the Mississippi River at 90.11 degrees West
longitude and extending the entire width of the river. Entry into this
zone is prohibited during enforcement periods unless specifically
authorized by the Captain of the Port Sector Upper Mississippi River or
a designated representative. Emergency response boats or vessels may
enter these waters when responding to emergent situations on or near
the river.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone for the
Missouri River from the border between Montana and North Dakota at
104.05 degrees west longitude to the confluence with the Mississippi
River at 90.11 degrees West longitude and extending the entire width of
the river. During enforcement periods, vessels and tows may not enter
this zone unless authorized by the Captain of the Port Sector Upper
Mississippi River. Emergency response boats or vessels may enter these
waters when responding to emergent situations on or near the river.
This rule is effective from 12:01 a.m. CDT June 2, 2011 until 11:59
p.m. CDT August 30, 2011, unless terminated earlier. This safety zone
will be enforced when high water conditions pose a danger to
navigation, the levee system, and the general public. The Captain of
the Port Sector Upper Mississippi River will inform the public through
broadcast notices to mariners and/or marine safety information
bulletins when enforcement periods are in place and of all safety zone
changes. When enforcement is implemented, vessels currently in the
safety zone will be provided opportunity to safely exit the restricted
area.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security (DHS).
    Notifications to the marine community will be made through
broadcast notices to mariners and/or marine safety information
bulletins. Vessels requiring entry into or passage through the Safety
Zone may request permission from the Captain of the Port Sector Upper
Mississippi, or a designated representative and entry will be evaluated
on a case-by-case basis to minimize impact and protect the general
public, levee system, and vessels from destruction, loss or injury due
to the hazards associated with rising flood water. The impacts on
routine navigation are expected to be minimal.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.

    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. This rule will affect the following entities, some of which
may be small entities: The owners or operators of vessels intending to
transit waters of the Missouri River from the border between Montana
and North Dakota at 104.05 degrees west longitude to the confluence
with the Mississippi River at 90.11 degrees West longitude extending
the entire width of the river on and after 12:01 a.m. CDT June 2, 2011,
unless terminated earlier. This temporary safety zone is not expected
to have a significant economic impact on a substantial number of small
entities because vessels may request permission to transit the area
from the Captain of the Port Sector Upper Mississippi, or a designated
representative, for passage through the safety zone. Passage through
the safety zone will be evaluated on a case-by-case basis to minimize
impact and protect the general public, levee system, and vessels from
destruction, loss or injury due to the hazards associated with rising
flood water. If you are a small business entity and are significantly
affected by this regulation, please contact LCDR Scott Stoermer, Sector
Upper Mississippi River, Coast Guard at<PHONE_NUMBER>.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so they could better evaluate its
effects on them and participate in the rulemaking process. 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 businesses. If you wish to comment on actions by employees of
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

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 or more in any
one year. Though this rule will not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that Order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies. This rule does not use technical standards.
Therefore, we did not consider the use of voluntary consensus
standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g), of the Instruction, from further
environmental documentation because this rule is not expected to result
in any significant adverse environmental impact as described in the
National Environmental Policy Act of 1969 (NEPA).
    This rule involves establishing a temporary safety zone in an
emergency situation and will be in effect for over one week. An
environmental analysis checklist and a categorical exclusion
determination will be provided and made available at the docket as
indicated in the ADDRESSES section.

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. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.

0
2. A new temporary Sec.  165.T11-0511 is added to read as follows:

Sec.  165.T11-0511  Safety Zone; Missouri River from the border between
Montana and North Dakota

    (a) Location. The following area is a temporary safety zone: Waters
of the Missouri River from the border between Montana and North Dakota
at 104.05 degrees west longitude to the confluence with the Mississippi
River at 90.11 degrees West longitude and extending the entire width of
the river.
    (b) Effective date. From June 2, 2011 through August 30, 2011,
unless terminated earlier.
    (c) Periods of Enforcement. This rule will be enforced during
dangerous flooding conditions occurring between 12:01 a.m. CDT June 2,
2011 and 11:59 p.m. CDT August 30, 2011. The Captain of the Port Sector
Upper Mississippi River will inform the public through broadcast notice
to mariners and/or marine safety information bulletins when enforcement
is implemented and of any changes to safety zone. Vessels within the
safety zone will be allowed to safely exit the area upon enforcement of
this safety zone.
    (d) Regulations. (1) In accordance with the general regulations in
33 CFR part 165, subpart C, operation in this zone is restricted unless
authorized by the Captain of the Port Sector Upper Mississippi River or
a designated representative.
    (2) Vessels requiring entry into or passage through the Safety Zone
must request permission from the Captain of the Port Sector Upper
Mississippi River, or a designated representative. They may be
contacted on VHF Channel 13 or 16, or by telephone at<PHONE_NUMBER>.
    (3) All persons and vessels shall comply with the instructions of
the Captain of the Port Sector Upper Mississippi River or their
designated representative. Designated Captain of the Port
representatives include United States Coast Guard commissioned,
warrant, and petty officers of the U.S. Coast Guard.

    Dated: June 2, 2011.
S. C. Teschendorf,
Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper
Mississippi River.
[FR Doc. 2011-16096 Filed 6-27-11; 8:45 am]
BILLING CODE 9110-04-P