[Federal Register Volume 83, Number 172 (Wednesday, September 5, 2018)]
[Rules and Regulations]
[Pages 45047-45049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19193]


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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.

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SUMMARY: The Coast Guard is extending the duration of 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.

DATES: This rule is effective without actual notice from September 5, 
2018 until January 31, 2019. For the purposes of enforcement, actual 
notice will be used from September 1, 2018 until September 5, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://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

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. In response, on May 7, 2018, the Coast Guard 
published a temporary final rule; request for

[[Page 45048]]

comments titled ``Safety Zone; Neches River, Beaumont, TX'' (83 FR 
19968). During the comment period that ended May 29, 2018, we received 
no comments.
    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 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 Comments, Changes, and the Rule

    As noted above, we received no comments on our temporary final 
rule; request for comments published on May 7, 2018. The only changes 
in the regulatory text of this rule are minor formatting edits and the 
extension of the effective period until January 31, 2018, or until the 
missing and/or damaged fenders are repaired or replaced, whichever 
occurs first.
    This rule extends a temporary safety zone from September 1, 2018 
through January 31, 2019 or until missing and/or damaged fendering 
systems are repaired or replaced, whichever occurs first. The safety 
zone extends 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 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.

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 13563 (``Improving Regulation and Regulatory 
Review'') and 12866 (``Regulatory Planning and Review'') 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 (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. Executive Order 13771 (``Reducing 
Regulation and Controlling Regulatory Costs'') directs agencies to 
reduce regulation and control regulatory costs and provides that ``for 
every one new regulation issued, at least two prior regulations be 
identified for elimination, and that the cost of planned regulations be 
prudently managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this 
rule a ``significant regulatory action,'' under section 3(f) of 
Executive Order 12866. Accordingly, OMB has not reviewed it. As this 
rule is not a significant regulatory action, this rule is exempt from 
the requirements of Executive Order 13771. See OMB's Memorandum 
``Guidance Implementing Executive Order 13771, Titled `Reducing 
Regulation and Controlling Regulatory Costs' '' (April 5, 2017). 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 received no comments from the Small Business 
Administration on this 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.
    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 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.

[[Page 45049]]

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.

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.

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. Revise 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 rule is effective without actual notice 
from September 5, 2018 until January 31, 2019 or until missing and/or 
damaged fendering systems are repaired or replaced, whichever occurs 
first. For the purposes of enforcement, actual notice will be used from 
September 1, 2018 until September 5, 2018.
    (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 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 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.

    Dated: August 29, 2018.
Jacqueline Twomey,
Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port 
Arthur.
[FR Doc. 2018-19193 Filed 9-4-18; 8:45 am]
 BILLING CODE 9110-04-P