[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Rules and Regulations]
[Pages 51336-51338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22033]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0905]
RIN 1625-AA00


Safety Zone; Upper Mississippi River, Mile 182.5, St. Louis, MO

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters within 500 yards of the McKinley Highway and 
Railroad Bridge located on the Upper Mississippi River at mile marker 
(MM) 182.5. The safety zone is needed to protect persons, vessels, and 
the marine environment from potential hazards created by the 
installation of electrical lines across the river. Entry of persons or 
vessels 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 without actual notice from October 11, 
2018 until October 19, 2018. For the purposes of enforcement, actual 
notice will be used from September 28, 2018 until October 11, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0905 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 Petty Officer Kyle Weitzell, Sector Upper Mississippi 
River Waterways Management Division, U.S. Coast Guard; telephone 314-
269-2573, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Upper Mississippi River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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)(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 final 
details regarding this project were not determined until September 17, 
2018. We must establish this safety zone by September 28, 2018, and we 
lack sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule. The NPRM process would 
delay establishment of the safety zone until after the date of the 
electrical line work and compromise public safety.
    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 contrary to public interest because immediate action 
is necessary to respond to the potential safety hazards associated with 
electrical line installation over the Upper Mississippi River.

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 Sector Upper Mississippi River (COTP) has 
determined that potential hazards associated with electrical line 
installation over the Upper Mississippi River will be a safety concern 
for anyone within 500 yards of the McKinley Highway and Railroad Bridge 
at MM 182.5. This rule is needed to protect persons, vessels, and the 
marine environment on the navigable waters within the safety zone while 
electrical lines are pulled across the river.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone for a three week 
period from September 28, 2018 through October 19, 2018, or until the 
electrical line work is completed, whichever occurs first. The safety 
zone will cover all navigable waters within 500 yards of the McKinley 
Highway and Railroad Bridge at MM 182.5 on the Upper Mississippi River, 
extending the entire width of the river. Transit into and through this 
safety zone is prohibited during periods of enforcement. This zone will 
be enforced on approximately nine days during the effective period, 
during daylight hours, and for approximately five hours on each day. 
This zone will begin each day that electrical line work is to be 
performed from approximately 9 a.m. through 2 p.m. The COTP or a 
designated representative will inform the public through Broadcast 
Notices to Mariners (BNMs) and/or through other means of public notice 
at least 12 hours in advance of each enforcement period, and a safety 
vessel will coordinate all vessel traffic during the enforcement 
periods. In addition, the COTP or a designated representative will 
release regular BNMs while the zone is in effect and will also announce 
the suspension of zone date via VHF-FM marine channel 16.
    The duration of this temporary safety zone is intended to protect 
persons, vessels, and the marine environment on these navigable waters 
while the electrical lines are being pulled across the river. No vessel 
or person will be

[[Page 51337]]

permitted to enter the safety zone without obtaining permission from 
the COTP or a designated representative. A designated representative is 
a commissioned, warrant, or petty officer of the U.S. Coast Guard 
assigned to units under the operational control of USCG Sector Upper 
Mississippi River. To seek entry into the safety zone, contact the COTP 
or the COTP's designated representative by telephone at 314-269-2332 or 
on VHF-FM channel 16. Persons and vessels permitted to enter this 
safety zone must transit at their slowest safe speed and comply with 
all lawful directions issued by the COTP or the designated 
representative. The COTP or a designated representative will inform the 
public of the enforcement dates and times for this safety zone, as well 
as any emergent safety concerns that may delay the suspension of the 
zone each day, through BNMs, Local Notices 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 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 safety zone impacts a 
one-half mile stretch of the Upper Mississippi River for approximately 
five hours on each of nine days. Moreover, the Coast Guard will issue 
BNMs via VHF-FM marine channel 16 about 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 
temporary 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 because the rule will allow 
persons and vessels to seek permission to enter the zone and 
coordinated entry may be arranged on a case by case basis. 
Additionally, coordination with several waterways users has taken place 
to mitigate as much impact as possible.
    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.

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 is anticipated to last approximately 5 hours per day 
for approximately 9 days during the effective period of this rule which 
will prohibit entry within 500 yards of the McKinley Highway and 
Railroad Bridge at MM 182.5 on the Upper Mississippi River. It is 
categorically excluded from

[[Page 51338]]

further review under paragraph L60(a) 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. Add Sec.  165.T08-0905 to read as follows:

Sec.  165.T08-0905   Safety Zone; Upper Mississippi River, mile 182.5, 
St. Louis, MN.

    (a) Location. The following area is a safety zone: All navigable 
waters within 500 yards of the McKinley Highway and Railroad Bridge at 
mile marker (MM) 182.5 on the Upper Mississippi River, extending the 
entire width of the river.
    (b) Effective period. This section is effective from September 28, 
2018 through October 19, 2018.
    (c) Enforcement periods. This section will be enforced on 
approximately 9 days during the effective period. This section will be 
enforced each day that electrical line work is to be performed from 
approximately 9 a.m. through 2 p.m. The Captain of the Port Sector 
Upper Mississippi River (COTP) or a designated representative will 
inform the public through Broadcast Notices to Mariners (BNMs) and/or 
through other means of public notice at least 12 hours in advance of 
each enforcement period, and a safety vessel will coordinate all vessel 
traffic during the enforcement periods. In addition, the COTP or a 
designated representative will release regular BNMs while the zone is 
in effect and will also announce the suspension of enforcement of the 
zone on VHF-FM marine channel 16.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry of vessels or persons into this zone 
is prohibited unless specifically authorized by the COTP or designated 
representative. A designated representative is a commissioned, warrant, 
or petty officer of the U.S. Coast Guard assigned to units under the 
operational control of USCG Sector Upper Mississippi River.
    (2) Vessels requiring entry into this safety zone must request 
permission from the COTP or a designated representative. To seek entry 
into the safety zone, contact the COTP or the COTP's representative by 
telephone at 314-269-2332 or on VHF-FM channel 16.
    (3) Persons and vessels permitted to enter this safety zone must 
transit at their slowest safe speed and comply with all lawful 
directions issued by the COTP or the designated representative.
    (e) Information broadcasts. The COTP or a designated representative 
will inform the public of the enforcement dates and times for this 
safety zone, as well as any emergent safety concerns that may delay the 
enforcement of the zone each day, through Broadcast Notices to Mariners 
(BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety 
Information Bulletins (MSIBs) as appropriate.

    Dated: September 28, 2018.
S.A. Stoermer,
Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi 
River.
[FR Doc. 2018-22033 Filed 10-10-18; 8:45 am]
 BILLING CODE 9110-04-P