2011-10147. Safety Zone; Red River

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for all waters of the Red River in the State of North Dakota, including those portions of the river bordered by Richland, Cass, Traill, Grand Forks, Walsh, and Pembina Counties, plus those in Minnesota South of a line drawn across latitude 46°20′00″ N, extending the entire width of the river. This safety zone is needed to protect persons and vessels from safety hazards associated with flooding occurring on the Red River. Entry into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.

DATES:

This rule is effective in the CFR from April 27, 2011 through 11:59 p.m. on July 15, 2011. This rule is effective with actual notice from 12:01 a.m. on April 8, 2011, until 11:59 p.m. on July 15, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0260 and are available online by going to http://www.regulations.gov,, inserting USCG-2011-0260 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 email Lieutenant Commander (LCDR) Scott Stoermer, Sector Upper Mississippi River, Coast Guard at [phone] or [e-mail].

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 April 8, 2011, the Captain of the Port Upper Mississippi River deemed navigation on the Red River unsafe due to severe flooding and has closed navigation on the Red River bordered by Richland, Cass, Traill, Grand Forks, Walsh, and Pembina Counties in North Dakota, extending the entire width of the river. To provide for the safety of the public, the Coast Guard will temporarily restrict access to this section of the Red River while conditions remain dangerous.

Discussion of Rule

The Coast Guard is establishing a temporary safety zone for all waters of the Red River in the State of North Dakota, including those portions of the river bordered by Richland, Cass, Traill, Grand Forks, Walsh, and Pembina Counties, plus those in Minnesota South of a line drawn across latitude 46°20′00″ N, extending the entire width of the river. Entry into this zone is prohibited to all vessels and persons except those persons and vessels specifically authorized by the Captain of the Port Sector Upper Mississippi River. This rule is effective from 12:01 a.m. April 8, 2011 until 11:59 p.m. July 15, 2011. This temporary safety zone will be enforced while conditions remain dangerous. The Captain of the Port Sector Upper Mississippi River will inform the public through broadcast notice to mariners of all safety zone changes and enforcement periods.

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).

This rule will be in effect until canceled and notifications to the marine community will be made through broadcast notice to mariners and the River Industry Bulletin Board (RIBB) at http://www.ribb.com.

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 all waters of the Red River in the State of North Dakota, including those portions of the river bordered by Richland, Cass, Traill, Grand Forks, Walsh, and Pembina Counties, plus those in Minnesota South of a line drawn across latitude 46°20′00″ N, extending the entire width of the river on and after April 8, 2011. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: (1) This rule will only be in effect for a limited period of time.

If you are a small business entity and are significantly affected by this regulation, please contact LCDR Scott Stoermer, Sector Upper Mississippi River, at [phone].

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).

Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” 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.T09-0260 is added to read as follows:

§ 165.T09-0260

Safety Zone; Red River.

(a) Location. The following area is a safety zone: Waters of the Red River in the State of North Dakota, including those portions of the river bordered by Richland, Cass, Traill, Grand Forks, Walsh, and Pembina Counties, plus those in Minnesota South of a line drawn across latitude 46°20′00″ N, extending the entire width of the river.

(b) Effective date. This rule is effective from 12:01 a.m. April 8, 2011 until 11:59 p.m. July 15, 2011.

(c) Periods of Enforcement. This rule will be enforced from April 8, 2011 until 11:59 p.m. May 15, 2011 while dangerous flooding conditions exist. The Captain of the Port Sector Upper Mississippi River will inform the public through broadcast notice to mariners of any changes to enforcement periods.

(d) Regulations. (1) In accordance with the general regulations in § 165, Subpart C of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Sector Upper Mississippi River and Marine Safety Unit Duluth or a designated representative.

(2) Persons or vessels requiring entry into or passage through the zone must request permission from the Captain of the Port Sector Upper Mississippi River or a designated representative. The Captain of the Port Sector Upper Mississippi River representative may be contacted at [phone].

(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: April 8, 2011.

S.L. Hudson,

Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi River.