[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Rules and Regulations]
[Pages 75850-75853]
[FR Doc No: 2012-30983]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1044]
RIN 1625-AA11

Regulated Navigation Area; Upper Mississippi River MM 0.0 to MM
185.0; Cairo, IL to St. Louis, MO

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary regulated
navigation area (RNA) for all waters of the Upper Mississippi River
between miles 0.0 and 185.0. This RNA is needed to protect persons,
property, and infrastructure from potential damage and safety hazards
associated with extreme low water conditions on the Upper Mississippi
River. Any deviation from the conditions and requirements put into
place are prohibited unless specifically authorized by the cognizant
Captain of the Port (COTP) (COTP Ohio Valley for MM 0.0 to MM 109.9 or
COTP Upper Mississippi River for MM 109.9 to MM 185.0) or their
designated representatives.

DATES: This rule is effective in the CFR on December 26, 2012 and
effective with actual notice for purposes of enforcement on December 1,
2012, until March 31, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-1044]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LT Dan McQuate, U.S. Coast Guard; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>or CWO Scott Coder, U.S. Coast Guard;
telephone<PHONE_NUMBER>, email<EMAIL_ADDRESS>If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

AIS Automatic Identification System
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
M/V Motor Vessel
NPRM Notice of Proposed Rulemaking
RIAC River Industry Action Committee
RNA Regulated Navigation Area
UMR Upper Mississippi River
USACE United States Army Corps of Engineers

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are

``impracticable, unnecessary, or contrary to the public interest.''
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists
for not publishing a notice of proposed rulemaking (NPRM) with respect
to this rule. The Coast Guard has tracked low water conditions
throughout the Western Rivers during the summer and fall of 2012.
Throughout this time, it has not been possible to accurately predict
the extent to which rivers may be affected due to uncertainties with
local weather, specifically rainfall amounts. On November 20, 2012 the
United States Army Corps of Engineers (USACE) and Coast Guard hosted a
joint meeting with the River Industry Action Committee (RIAC), the
industry committee for the Upper Mississippi River (UMR), in St. Louis,
MO. During this meeting the USACE noted that approximately two-thirds
of the continental United States continues to be affected by an ongoing
and persistent drought. As a result of the drought and the normal
annual reduced flows per the operational plan for the Missouri River,
they predicted extreme low water conditions in the UMR beginning in
early December 2012. Therefore, various control measures or directions
to vessels operating on the UMR are immediately needed to address safe
navigation concerns brought on by the extreme low water conditions. Due
to the timing of the actual notice of definitive low water conditions,
there is not enough time to complete the NPRM process before the onset
of extreme low water conditions that will expose persons and property
to safety hazards, contrary to the public interest.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard
finds that good cause exists for making this rule effective less than
30 days after publication in the Federal Register. Providing 30 days
notice and delaying the RNA's effective date would be contrary to
public interest because immediate action is needed to protect persons,
property and infrastructure from the potential damage and safety
hazards associated with low water conditions on the UMR.

B. Basis and Purpose

    The legal basis and authorities for this rule are found in 33
U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064;
and Department of Homeland Security Delegation No. 0170.1, which
collectively authorize the Coast Guard to establish and define RNAs.
    The purpose of this RNA is to address safe navigation concerns for
persons and vessels while extreme low water conditions exist on the UMR
from mile 0.0 to mile 185.0. The extreme low water conditions pose
significant safety hazards to vessels and mariners operating on the
UMR. For this reason, the Coast Guard is establishing this RNA to
implement various waterway operational controls that vessels will have
to follow while operating on the UMR.

C. Discussion of the Temporary Final Rule

    The Coast Guard is establishing a temporary RNA for all vessel
traffic on the UMR between mile 0.0 and 185.0, extending the entire
width of the river. Within this RNA various restrictions and
requirements may be put into effect based on actual or projected
channel widths and depths. These restrictions and requirements will be
the minimum necessary for the protection of persons, property and
infrastructure from the potential damage and safety hazards associated
the extreme low water and may include, but are not limited to,
limitations on tow size, tow configuration, vessel/barge draft, assist
vessels, speed, under keel clearance, vessel traffic reporting, hours
of transit, one way traffic, and use of Automatic Identification System
(AIS) if fitted onboard a vessel. Enforcement times and specific
restrictions and requirements for the entire regulated navigation area,
or specific areas within the regulated navigation area, will be
announced via Broadcast Notice to Mariners (BNM), through outreach with
RIAC,the Local Notice to Mariners, and through other public notice.
    Any deviation from the requirements put into place are prohibited
unless specifically authorized by the COTP Ohio Valley, COTP Upper
Mississippi River, or a designated representative. Deviations for the
specific restrictions and regulations will be considered and reviewed
on a case-by-case basis. The COTP Ohio Valley may be contacted by
telephone at 1-800-253-7465. The COTP Upper Mississippi River may be
contacted by telephone at<PHONE_NUMBER>. All COTPs can be reached by
VHF-FM channel 16.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. This rule establishes a
temporary RNA for vessels on all waters of the UMR from mile 0.0 to
mile 185.0. Notifications of enforcement times of control measures and
requirements put into effect for the entire RNA, or specific areas
within the RNA, will be communicated to the marine community via BNM,
through outreach with RIAC, Local Notice to mariners, and through other
public notice. The impacts on navigation will be limited to addressing
the safety of mariners and vessels associated with hazards due to river
conditions during low water. Operational controls under this RNA will
be the minimum necessary to protect mariners, vessels, the public, and
the environment from risks due to extreme low water conditions.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
    This rule will affect the following entities, some of which may be
small entities: the owners or operators of vessels intending to transit
the UMR, from December 1, 2012 to March 31, 2013. This RNA will not
have a significant economic impact on a substantial number of small
entities because traffic in this area is limited almost entirely to
recreational vessels and commercial towing vessels, and this rule
allows vessels to pass through the area, subject to certain
restrictions. Notifications to the marine community will be made
through BNM, communications with RIAC, and other public notice. Notices
of changes to the RNA and effective times will also be made. Deviation
from the restrictions may be requested from the COTP or designated
representative and will be considered on a case-by-case basis.

3. Assistance for Small Entities

    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, above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on 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 determined
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the ``FOR FURTHER
INFORMATION CONTACT'' section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

8. Taking of Private Property

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

9. Civil Justice Reform

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

10. Protection of Children

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

11. Indian Tribal Governments

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

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have 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 is categorically excluded from further review
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An
environmental analysis checklist and a categorical exclusion
determination will be made available as indicated under the ADDRESSES
section.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
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; 46 U.S.C. Chapter 701, 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.

0
2. Add new temporary Sec.  165.T08-1044 to read as follows:

Sec.  165.T08-1044  Regulated Navigation Area; Upper Mississippi River
between mile 0.0 and 185.0, Cairo, IL to St. Louis, MO.

    (a) Location. The following area is a regulated navigation area
(RNA): all waters of the Upper Mississippi River between mile 0.0 and
185.0, Cairo, Illinois, to St. Louis, Missouri, extending the entire
width of the river.
    (b) Effective dates. This RNA is effective and enforceable with
actual notice from December 1, 2012 through March 31, 2013.
    (c) Regulations. (1) Within their respective portions of the RNA,
the Captains of the Port (COTP) Ohio Valley and Upper Mississippi River
may prescribe, for all or specific portions of the RNA, periods of
enforcement and minimum operational requirements necessary to preserve
safe navigation on the Upper Mississippi River despite extreme low
water conditions, including, but not limited to, the required use of
assist vessels, vessel traffic reporting, and Automatic Information
Systems when fitted onboard a vessel; and restrictions on the
following:
    (i) tow size;
    (ii) tow configuration;
    (iii) vessel/barge draft;
    (iv) speed;
    (v) under Keel Clearance;
    (vi) hours of transit; and
    (vii) one way traffic.
    (2) All persons and vessels must comply with any requirement
prescribed under paragraph (c)(1) of this section.

    (3) Persons or vessels may request an exception from any
requirement prescribed under paragraph (c)(1) of this section from the
cognizant COTP or their designated representative who may be a
commissioned, warrant, or petty officer of the Coast Guard or a
military or civilian member of the U.S. Army Corps of Engineers. The
COTP Ohio Valley may be contacted by telephone at 1-800-253-7465. The
COTP Upper Mississippi River may be contacted by telephone at 314-269-
2332. Both may also be contacted on VHF-FM channel 16.
    (d) Enforcement. The COTP Ohio Valley and COTP Upper Mississippi
River will notify the public of the specific requirements prescribed
under paragraph (c)(1) of this section and of the times when those
requirements will be enforced or when enforcement will be suspended,
using means designed to ensure maximum effectual notice including, but
not limited to, broadcast notices to mariners (BNM) and communications
through the River Industry Action Committee.

    Dated: December 14, 2012.
R.A. Nash,
Rear Admiral, U.S. Coast Guard Eighth District Commander.
[FR Doc. 2012-30983 Filed 12-21-12; 4:15 pm]
BILLING CODE 9110-04-P