[Federal Register Volume 84, Number 54 (Wednesday, March 20, 2019)]
[Rules and Regulations]
[Pages 10262-10264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05300]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0177]
RIN 1625-AA00


Safety Zone; Missouri River, Mile Markers 450-625, St. Joseph, MO 
to Omaha, NE

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Missouri River from mile marker (MM) 450 to MM 
625 between St. Joseph, MO and Omaha, NE. This action is necessary to 
provide for the safety of persons, vessels, and the marine environment 
on these navigable waters as a result of flooding on the river that has 
resulted in some reported levee failures and is threatening to overtop 
additional levees. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
Sector Upper Mississippi River (COTP) or a designated representative.

DATES: This rule is effective without actual notice from March 20, 2019 
until April 1, 2019, or until cancelled by the Captain of the Port 
Sector Upper Mississippi River, whichever occurs first. For the 
purposes of enforcement, actual notice will be provided from March 15, 
2019 until March 20, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0177 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 Lieutenant Commander Christian Barger, Sector Upper 
Mississippi River Waterways Management Division, U.S. Coast Guard; 
telephone 314-269-2560, 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
USACE United States Army Corps of Engineers
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. It is 
impracticable because we must establish this safety zone immediately 
and lack sufficient time to provide a reasonable comment period and 
then consider those comments before issuing this rule. The NPRM process 
would delay the establishment of the safety zone 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 this rule would be 
contrary to public interest because immediate action is necessary to 
respond to the potential safety hazards associated with floodwaters 
threatening to overtop levees along the river.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The COTP has determined that potential hazards associated with 
flood waters threaten to overtop levees along the river. The United 
States Army Corps of Engineers (USACE) Kansas City District has 
expressed concern that vessel traffic in the affected area could cause 
damage to the levees resulting in overtopping or failure. This rule is 
necessary to ensure the safety of persons, vessels, and the marine 
environment on these navigable waters due to the flood impacts to USACE 
levees.

IV. Discussion of the Rule

    On March 14, 2019, the USACE Kansas City District contacted the 
Coast Guard to report flood waters approaching the tops of levees along 
the Missouri River between Mile Marker (MM) 450 and MM 550 and 
requested a river closure to ensure the safety of persons, vessels, and 
the marine environment that would result if floodwaters overtop the 
levees. On March 15, 2019, the Plattsmouth Fire Department reported a 
levee break along the river and requested a river closure to MM 625 at 
Omaha, NE. This rule establishes a temporary safety zone from March 15, 
2019 until April 1, 2019, or until cancelled by the Captain of the Port 
Sector Upper Mississippi River (COTP). The safety zone will be enforced 
on all navigable waters of the Missouri River from MM 450 to MM 625, 
unless reduced in scope by the COTP as flood conditions warrant.
    No vessel or person will be 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 (USCG) assigned to units under 
the operational control of USCG Sector Upper Mississippi River. To seek 
permission to enter, contact the COTP or a designated representative 
via VHF-FM channel 16, or through USCG Sector Upper Mississippi River 
at 314-269-2332. Persons and vessels permitted to enter the safety zone 
must comply with all lawful orders or directions issued by the COTP or 
designated representative. The COTP or a designated representative will 
inform the public of the effective period for the safety zone as well 
as any changes in the dates and times of enforcement, as well as 
reductions in size of the safety zone as flood conditions improve, 
through

[[Page 10263]]

Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), 
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 emergency 
nature of the action and after consultation with representatives of the 
shipping industries that use this reach of river indicate that the many 
shipping companies have already made arrangements to avoid this area. 
Moreover, the Coast Guard will issue a BNM via VHF-FM marine channel 16 
about the zone, and the rule allows vessels to seek permission to enter 
the zone on a case-by-case basis.

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.
    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 temporary safety zone prohibiting entry on a one hundred mile stretch 
of the Missouri River that is experiencing significant flooding that is 
impacting levees. 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 will be made 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:  46 U.S.C. 70034; 46 U.S.C. 70051; 33 CFR 1.05-1, 
6.04-1, 6.04-6, and

[[Page 10264]]

160.5; Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T08-0177 to read as follows:


Sec.  165.T08-0177  Safety Zone; Missouri River, Mile Markers 450-625, 
St. Joseph, MO to Omaha, NE.

    (a) Location. The following area is a safety zone: All waters of 
the Missouri River from Mile Marker (MM) 450 to MM 625 This section 
will be enforced on all navigable waters of the Missouri River from MM 
450 to MM 625, unless reduced in scope by the COTP as flood conditions 
warrant.
    (b) Effective period. This section is effective without actual 
notice from March 20, 2019 until April 1, 2019, or until cancelled by 
the Captain of the Port Sector Upper Mississippi River (COTP), 
whichever occurs first. For the purposes of enforcement, actual notice 
will be provided from March 15, 2019 until March 20, 2019.
    (c) Regulations. (1) In accordance with the general safety zone 
regulations in Sec.  165.23, entry of persons or vessels into this 
safety zone described in paragraph (a) of this section is prohibited 
unless authorized by the COTP or a designated representative. A 
designated representative is a commissioned, warrant, or petty officer 
of the U.S. Coast Guard (USCG) assigned to units under the operational 
control of USCG Sector Upper Mississippi River.
    (2) To seek permission to enter, contact the COTP or a designated 
representative via VHF-FM channel 16, or through USCG Sector Upper 
Mississippi River at 314-269-2332. Persons and vessels permitted to 
enter the safety zone must comply with all lawful orders or directions 
issued by the COTP or designated representative.
    (d) Informational broadcasts. The COTP or a designated 
representative will inform the public of the effective period for the 
safety zone as well as any changes in the dates and times of 
enforcement, as well as reductions in size of the safety zone as flood 
conditions improve, through Local Notice to Mariners (LNMs), Broadcast 
Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins 
(MSIBs) as appropriate.

    Dated: March 15, 2019.
R.M. Scott,
Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper 
Mississippi River.
[FR Doc. 2019-05300 Filed 3-19-19; 8:45 am]
 BILLING CODE 9110-04-P