[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Rules and Regulations]
[Pages 19965-19968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09667]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0376]
RIN 1625-AA00


Safety Zone; Neches River, Beaumont, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on 
navigable waters of the Neches River extending 500-feet on either side 
of the Kansas City Southern Railroad Bridge that crosses the Neches 
River in Beaumont, TX. The safety zone is necessary to protect the 
bridge as well as persons and property on or near the bridge from 
potential damage from passing vessels until missing and/or damaged 
fendering systems are repaired or replaced. Entry of certain vessels or 
persons into this zone is prohibited unless specifically authorized by 
the Captain of the Port Marine Safety Unit Port Arthur or a designated 
representative. We invite your comments on this rule.

DATES: This rule is effective without actual notice from May 7, 2018 
through midnight on August 31, 2018. For the purposes of enforcement, 
actual notice will be used from May 1, 2018 through May 7, 2018. 
Comments and related material must be received before May 29, 2018.

ADDRESSES: You may submit comments identified by docket number USCG-
2018-0376 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comment'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments. To view documents mentioned in 
this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0376 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 Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. 
Coast Guard; telephone 409-719-5086, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Marine Safety Unit Port Arthur
DHS Department of Homeland Security
FR Federal Register
KCS Kansas City Southern Railroad Company
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
VTS Vessel Traffic Service

[[Page 19966]]

II. Background Information and Regulatory History

    On April 19, 2018, the Coast Guard was notified that the wood 
fendering systems designed to protect bridge support columns of the 
Kansas City Southern Railroad Company's bridge (KSC) from strikes by 
vessels transiting under the bridge had been damaged or destroyed by 
Hurricane Harvey. The south bank column protection fenders are missing 
and the north bank column protection fenders are severely damaged. KCS 
indicated that strikes to the support columns could compromise the 
bridge structure.
    The Coast Guard is issuing this temporary 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)(3)(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 is impracticable. The 
fendering systems protecting the bridge from strikes by passing marine 
traffic are missing or severely damaged and we must establish this 
safety zone immediately to protect the bridge and those persons that 
use the bridge. The Coast Guard is providing an opportunity to comment 
while the rule is in effect and may amend the rule after it becomes 
effective, if necessary.
    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 impracticable and contrary to the public interest 
because immediate action is needed to respond to potential safety 
hazards posed by and to passing vessel traffic by and to the 
unprotected bridge columns supporting the KCS Bridge.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Marine Safety Unit Port Arthur (COTP) has 
determined that potential hazards posed by the unprotected bridge 
columns are a safety concern to the KCS Bridge and to persons and 
property on or near the bridge. The purpose of this rule is to provide 
for the safety of the KCS Bridge and persons and property on or near 
the bridge.

IV. Discussion of the Rule

    This rule establishes a safety zone from 1 p.m. on May 1, 2018 
through midnight on August 31, 2018 until missing and/or damaged 
fendering systems are repaired or replaced, whichever occurs first. The 
safety zone will extend 500-feet on either side of the KCS Bridge that 
crosses the Neches River in Beaumont, TX in approximate location 
30[deg] 04'54.8'' N 094[deg]05'29.4'' W. The duration of the zone is 
intended to protect the bridge support columns as well as persons and 
property on or near the bridge until the bridge fendering is repaired 
or replaced. Only vessels less than 65 feet in length and not engaged 
in towing are authorized to enter the zone, unless otherwise permitted 
by the COTP or a designated representative are permitted to enter the 
safety zone.
    Persons and vessels not permitted to enter the safety zone must 
request permission from the COTP or a designated representative. They 
may be contacted through Vessel Traffic Service (VTS) on channels 65A 
or 13 VHF-FM, or by telephone at (409) 719-5070.
    Permission to transit through the bridge will be based on weather, 
tide and current conditions, vessel size, horsepower, and availability 
of assist vessels. All persons and vessels permitted to enter this 
temporary safety zone shall comply with the lawful orders or directions 
given to them by COTP or a designated representative.
    Intentional or unintentional contact with any part of the bridge or 
associated structure, including fendering systems, support columns, 
spans or any other portion of the bridge, is strictly prohibited. 
Report any contact with the bridge or associated structures immediately 
to VTS Port Arthur on channels 65A, 13 or 16 VHF-FM or by telephone at 
(409) 719-5070.
    The Coast Guard will inform the public through public of the 
effective period of this safety zone through VTS Advisories, Broadcast 
Notices to Mariners (BNMs), Local Notice to Mariners (LNMs), and/or 
Marine Safety Information Bulletins (MSIBs) 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 as 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 size, location 
and duration of the safety zone. This rule will only affect certain 
vessels transiting the upper reaches of the Neches River in Beaumont, 
TX. The Coast Guard will issue a VTS Advisory concerning the zone, and 
the rule allows vessels to seek permission to enter the zone.

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 
safety zone 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

[[Page 19967]]

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 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 safety zone that will prohibit entry within 500-feet of either side 
of the KCS Bridge that crosses the Neches River in Beaumont, TX. 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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. The Coast Guard may amend this temporary final rule if we 
receive comments from the public that indicate that a change is 
warranted. If you submit a comment, please include the docket number 
for this rulemaking, indicate the specific section of this document to 
which each comment applies, and provide a reason for each suggestion.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this temporary final rule as being available 
in the docket, and all public comments, will be in our online docket at 
http://www.regulations.gov and can be viewed by following that 
website's instructions. Additionally, if you go to the online docket 
and sign up for email alerts, you will be notified when comments are 
posted.

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.T08-0376 to read as follows:


Sec.  165.T08-0376  Safety Zone; Neches River, Beaumont, TX.

    (a) Location. The following area is a safety zone: all navigable 
waters extending 500-feet on either side of the Kansas City Southern 
Railroad Bridge that crosses the Neches River in Beaumont, TX in 
approximate location 30[deg]04'54.8'' N 094[deg]05'29.4'' W.
    (b) Effective period. This section is effective from 1 p.m. on May 
1, 2018 through midnight on August 31, 2018 or until missing and/or 
damaged fendering systems are repaired or replaced, whichever occurs 
first.
    (c) Regulations. (1) No vessel may enter or remain in the safety 
zone except:
    (i) A vessel less than 65 feet in length and not engaged in towing; 
or
    (ii) A vessel authorized by the Captain of the Port Marine Safety 
Unit Port Arthur (COTP) or a designated representative
    (2) Persons and vessels not permitted to enter the safety zone must 
request permission from the COTP or a designated representative. They 
may be contacted through Vessel Traffic Service (VTS) on channels 65A 
or 13 VHF-FM, or by telephone at (409) 719-5070.
    (3) Permission to transit through the bridge will be based on 
weather, tide and current conditions, vessel size, horsepower, and 
availability of assist vessels. All persons and vessels permitted to 
enter this temporary safety zone shall comply with the lawful orders or 
directions given to them by COTP or a designated representative.
    (4) Intentional or unintentional contact with any part of the 
bridge or associated structure, including

[[Page 19968]]

fendering systems, support columns, spans or any other portion of the 
bridge, is strictly prohibited. Report any contact with the bridge or 
associated structures immediately to VTS Port Arthur on channels 65A, 
13 or 16 VHF-FM or by telephone at (409) 719-5070.
    (d) Informational broadcasts. The Coast Guard will inform the 
public of the effective period of this safety zone through VTS 
Advisories, Broadcast Notices to Mariners (BNMs), Local Notice to 
Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as 
appropriate.

    Dated: May 1, 2018.
Jacqueline Twomey,
Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port 
Arthur.
[FR Doc. 2018-09667 Filed 5-4-18; 8:45 am]
 BILLING CODE 9110-04-P