2010-27587. Regulated Navigation Area; Greenville Bridge Demolition, Lower Mississippi River Mile 531.3, AR, MS

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule.

SUMMARY:

The Coast Guard is establishing a regulated navigation area (RNA) for all waters of the Lower Mississippi River beginning at mile 528 and ending at mile 535 extending the entire width of the waterway in Arkansas and Mississippi. Vessels will not be permitted to be in this area at certain times during the demolition of the Greenville Bridge, Lower Mississippi River Mile 531.3. Additionally, vessels will not be allowed to meet or pass in the RNA and must proceed at a minimum safe speed. This RNA is needed to protect personnel and vessels from the potential safety hazards during the demolition of the Greenville Bridge, Lower Mississippi River Mile 531.3.

DATES:

This rule is effective in the CFR from November 2, 2010 through November 1, 2012. This rule is enforceable with actual notice for the purposes of enforcement from October 22, 2010 through November 1, 2012.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0693 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0693 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0693 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.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call or e-mail Chief Warrant Officer David Bear, Sector Lower Mississippi River Waterways Management Branch, Coast Guard; telephone [phone], e-mail: [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Public Participation

You are welcome to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-0693), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov,, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand delivery, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-0693” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-XXXX-XXXX” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. 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. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Regulatory Information

The Coast Guard is issuing this temporary interim 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 impracticable and contrary to the public interest due to the amount of notification received by the Coast Guard and the contractually imposed demolition timeline. The new Greenville Bridge was completed and opened to traffic July 28, 2010 about a year behind schedule. The Coast Guard received notice of the demolition plan and required timeline for the old bridge in late July 2010 and promptly completed its required review and approval of the plan by mid August 2010, leaving insufficient time to complete the NPRM process before the initial demolition start date. Delaying or rescheduling the demolition is impracticable because the Mississippi Department of Transportation contract requires complete removal by early June 2011 and the delayed new bridge completion has already caused demolition delays. Therefore, sufficient time to publish a NPRM is not available and immediate action is needed to protect the personnel, vessels and mariners associated with and/or present during the demolition process.

Under 5 U.S.C. 553(d)(3), based on the contractually imposed timeline and the notification received by the Coast Guard good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The demolition timeline presented to the USCG requires immediate action and a delayed effective date would be contrary to the public interest. Delaying or rescheduling the demolition to provide 30 days notice also is impracticable because the Mississippi Department of Transportation contract requires complete removal by early June 2011 and the delayed new bridge completion has already caused demolition delays. By making the rule effective immediately upon publication and enforceable with actual notice upon signature the required demolition of the old bridge structure can continue under the applicable contract and the personnel, vessels, and mariners associated with and/or present during demolition will be protected. We will accept public comments on this temporary interim rule and, if they indicate a need for modification of the rule, we will take further regulatory action.

Background and Purpose

The legal basis for this rulemaking is the Coast Guard's authority to establish regulated navigation areas, under 33 U.S.C. 1226, 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; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. A RNA is a water area within a defined boundary for which regulations for vessels navigating within the area have been established, to control vessel traffic in a place determined to have hazardous conditions. 33 CFR 165.10; U.S.C.G. Commandant Instruction Manual M16704.3A, 1-6.

The purpose of this rule is to establish a RNA for all waters of the Lower Mississippi River beginning at mile 528 and ending at mile 535 extending the entire width of the waterway, to protect personnel and vessels, both transiting the waterway and conducting the work, from the potential safety hazards involved in the demolition of the Greenville Bridge, Lower Mississippi River Mile 531.3. Vessels will not be permitted to be in this area during certain phases of the demolition of the Greenville Bridge, Lower Mississippi River Mile 531.3. Due to the demolition, the waterway will have to be closed or partially restricted to traffic at certain times depending on how the demolition is proceeding.

The RNA will allow for the safe and orderly movements in and through the demolition area.

Discussion of Rule

During enforcement periods under this rule, all vessels are required to transit the RNA at the minimum safe speed and may be prohibited from transiting all waters of the Lower Mississippi River beginning at mile 528 and ending at mile 535 extending the entire width of the waterway. Enforcement periods include, but are not limited to:

(1) Any time structural parts of the bridge are being removed, dismantled or demolished, where a reasonable risk to passing vessels or personnel exists.

(2) Any time passing vessels pose a danger to the personnel and vessels conducting the demolition work.

(3) During the setting and use of explosives to demolish the bridge support piers.

(4) During the lowering of the middle 420 feet of main span to barges for transport to the Arkansas shore for dismantling. This will take approximately 24 hours and is currently scheduled for mid-November depending on how preparation work progresses.

Minimum safe speed will be required of all vessels transiting the area when lifting, positioning or surveying work is being conducted.

All vessels transiting the area must:

(1) Announce their intentions of entering the RNA;

(2) Avoid meeting or passing another vessel in the RNA;

(3) Not anchor, stop, remain or drift without power at anytime in the RNA; and

(4) Continually monitor VHF-FM channel 13 on their radio-telephone while operating in, near or approaching the RNA.

The RNA will remain in effect through November 1, 2012. Currently there is only one scheduled closure of the water way for a 24 hour period during the removal of the main span. And, for any closure that will last longer than 4 hours notice will be given a minimum of 7 days before the scheduled closure, unless an emergent situation exists. All other closures should be less than 2 hours, and only when necessary. Notice for closure lasting over 2 hours but less than 4 hours will be given at least 72 hours before the closure.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

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. This rule is temporary and limited in nature regulating only during the actual demolition of the Greenville Bridge, Lower Mississippi River, Mile 531.3, creating no undue delay to vessel traffic in the area.

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 which may be small entities: owners or operators or vessels intending to transit the Lower Mississippi River from mile 528 to mile 535 during the demolition periods. This rule will not have a significant economic impact on those entities or a substantial number of any small entities for the following reasons. This rule will only be in effect through November 1, 2012. The Coast Guard will issue maritime advisories widely available to the users of the river at least 72 hours before to the closure of the waterway for any extended period (2 hours or more). Vessels will be able to transit the waterway during the vast majority of the demolition period.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can 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 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.

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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not effect 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 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 concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(a), of the Instruction. This rule involves the final stages of a bridge replacement on essentially the same alignment or location. The new structure has been completed and opened to the public. This RNA is being established to help facilitate the safe removal of the old structure. Under figure 2-1, paragraph (32)(a), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

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. 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.

2. A new temporary § 165.T10-0693 is added to read as follows:

§ 165.T10-0693

Regulated Navigation Area; Greenville Bridge Demolition, Lower Mississippi River, Mile 531.3.

(a) Regulated Navigation Area. The following is a regulated navigation area (RNA): All waters of the Lower Mississippi River beginning at mile 528 and ending at mile 535 extending the entire width of the waterway.

(b) Applicability. This section applies to all vessels and craft operating on the waters of the Mississippi in or near the RNA or approaching the RNA with intentions of transiting the RNA.

(c) Effective Dates. This rule is effective in the CFR from November 2, 2010 through November 1, 2012. This rule is effective with actual notice for purposes of enforcement from October 22, 2010 through November 1, 2012.

(d) Definitions. As used in this section:

COTP means Captain of the Port, Lower Mississippi River;

Closure means any time this RNA is enforced and normal traffic is halted from proceeding in or through the RNA due to operations that could pose potential safety hazards involved in the demolition of the Greenville Bridge;

Demolition means the removal, staging or preparation thereof, of any part of the old Greenville Bridge, Lower Mississippi River, Mile 531.3;

Designated representative includes any commissioned, warrant, or petty officer of the U.S. Coast Guard designated by the COTP Lower Mississippi to authorize entry into the RNA;

Downbound means the vessel is traveling with the current;

Site representative means the person so designated by the demolition contractor (Granite Construction Company) or the bridge owner (Mississippi Department of Transportation) whose responsibility it is to inform vessels in the vicinity of the demolition work of any possible hazards or encroachments to the waterway;

Upbound means the vessel is traveling against the current; and

Vessel or craft means any waterborne manmade object designed to convey people or goods.

(e) Regulations. During closure, in accordance with the general regulations in § 165.23 of this part:

(1) Entry into this zone by vessels or mariners is prohibited unless authorized by the COTP Lower Mississippi River or a designated representative. They may be contacted on VHF-FM channel 16 or by telephone at [phone];

(2) All persons and vessels shall comply with the instructions of the COTP Lower Mississippi River and designated representatives;

(3) Minimum safe speed will be required of all vessels transiting the RNA;

(4) Vessels shall not meet or pass in the RNA;

(5) No vessel shall anchor, stop, remain or drift without power at any time in the RNA;

(6) All vessels shall continually monitor VHF-FM channel 13 on their radio-telephone while operating in, near, or approaching the RNA;

(7) Before entering the RNA, downbound vessels shall make a broadcast in the blind on VHF-FM channel 13 announcing their estimated time of arrival at the upriver start of the RNA at mile 535 to ensure that there are no upbound vessels within the RNA and in sufficient time that:

(i) If there are vessels in the RNA the downbound vessel shall adjust its speed so as to avoid a meeting situation in the RNA.

(ii) If the RNA is temporarily closed to vessel traffic the downbound vessel can take all way off and hold station or push in upriver of mile 535.

(iii) The site representative can pass any pertinent information that would aid the vessel in the safe transit of the demolition site. If the Commander, Eighth Coast Guard District determines that hazardous conditions exist, a towboat (tug) shall be provided by the contractor or bridge owner to assist vessels through the bridge on demand; and

(8) Before entering the RNA, upbound vessels shall make a broadcast in the blind on VHF-FM channel 13 announcing their estimated time of arrival at the downriver start of the RNA at mile 528 to ensure that there are no downbound vessels within the RNA and in sufficient time that:

(i) If there are vessels in the RNA the upbound vessel shall adjust its speed so as to avoid a meeting situation in the RNA.

(ii) If the RNA is temporarily closed to vessel traffic the upbound vessel can take all way off and hold station or push in downriver of mile 528.

(iii) The site representative can pass any pertinent information that would aid the vessel in the safe transit of the demolition site. If the Commander, Eighth Coast Guard District determines that hazardous conditions exist, a towboat (tug) shall be provided by the contractor or bridge owner to assist vessels through the bridge on demand.

(f) Informational Broadcasts. The Captain of the Port, Lower Mississippi River will inform the public as soon as practical when closures are expected via Broadcast Notice to Mariners. Notice for any closure that will last longer than 4 hours will be given a minimum of 7 days before the scheduled closure, unless an emergent situation exists. Notice for any closure that will last longer than 2 hours but less than 4 hours will be given at least 72 hours before the closure. Broadcast Notice to Mariners will be broadcast every two hours while the RNA is closed to traffic. Additionally, a schedule of known closures will be published in the Eighth District Local Notice to Mariners and at http://homeport.uscg.mil. Select “LOWER MISSISSIPPI RIVER (MEMPHIS)” under the Port Directory tab. The schedule will appear under the Notice to Mariners subcategory.

Dated: October 22, 2010.

Peter Troedsson,

Captain, U.S. Coast Guard, Acting Commander, Eighth Coast Guard District.