[Federal Register Volume 84, Number 57 (Monday, March 25, 2019)]
[Proposed Rules]
[Pages 11035-11037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05560]



[[Page 11035]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0123]
RIN 1625-AA00


Safety Zone; Lower Mississippi River, Ohio River, and Upper 
Mississippi River, Bird's Point-New Madrid Floodway

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
for all navigable waters of the Lower Mississippi River from mile 
marker (MM) 953.8 to MM 887.0, the Upper Mississippi River from MM 0.0 
to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5. This action is 
necessary to protect persons, property, and infrastructure from 
potential damage and the safety hazards associated with the demolition 
of federal levees on the Lower Mississippi River and utilization of the 
Bird's Point-New Madrid Floodway. This proposed rulemaking would 
prohibit the entry of vessels or persons into this temporary safety 
zone unless specifically authorized by the Captain of the Port Sector 
Ohio Valley (COTP) or a designated representative.

DATES: Comments and related material must be received by the Coast 
Guard on or before April 24, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0123 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email MST2 Dylan Caikowski, MSU Paducah, 
U.S. Coast Guard; telephone 270-442-1621 ext. 2120, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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

II. Background, Purpose, and Legal Basis

    The purpose of this rulemaking is to ensure the safety of vessels 
on the navigable waters of the Lower Mississippi River, Upper 
Mississippi River, and Ohio River during high water event. The United 
States Army Corps of Engineers may deem it necessary to demolish 
certain federal levees on the Lower Mississippi River and utilize the 
Bird's Point-New Madrid Floodway, to maintain the integrity of the 
Lower Mississippi River, Upper Mississippi River, Ohio River, and all 
associated tributaries. During this time, a temporary safety zone on 
the Lower Mississippi River, Upper Mississippi River, and Ohio River 
would be necessary to protect persons, property, and infrastructure 
from potential damage and safety hazards associated with the demolition 
of federal levees on the Lower Mississippi River and utilization of the 
Bird's Point-New Madrid Floodway. The Captain of the Port Sector Ohio 
Valley (COTP) has determined that potential hazards associated with the 
demolition of the federal levees on the Lower Mississippi River and re-
stabilization of the waterway would be a safety concern for anyone in 
the vicinity of the Lower Mississippi River from mile marker (MM) 953.8 
to MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the 
Ohio River from MM 981.5 to MM 978.5. The Coast Guard is proposing this 
rulemaking under authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP proposes to establish a temporary safety zone on all 
navigable waters of the Lower Mississippi River from MM 953.8 MM 887.0, 
the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River 
from MM 981.5 to MM 978.5, in the event of the demolition of the 
federal levees on the Lower Mississippi River and utilization of the 
Bird's Point-New Madrid Floodway. The COTP or a designated 
representative would inform the public of the enforcement date and 
times for this safety zone, as well as any emergent safety concerns 
that may delay the enforcement of the zone through Local Notices to 
Mariners (LNMs), and/or actual notice.
    No vessels or persons would be permitted to enter the proposed 
safety zone without obtaining permission from the COTP or a designated 
representative. The regulatory text we are proposing appears at the end 
of this document.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM 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, duration, and time-of-day of the temporary safety zone. The 
safety zone would only impact a relatively small portion of the 
waterway and would only be in effect during the demolition process and 
approximately 36 hours after to allow for stabilization of the 
waterway. After approximately 36 hours, vessels would be allowed to 
transit. Additionally, the safety zone would be limited to the high 
water event if the U.S. Army Corps of Engineers deems it necessary to 
demolish the federal levees on the Lower Mississippi River and utilize 
the Bird's Point-New Madrid Floodway.

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 
proposed rule would not

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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 IV.A above, this proposed rule would not have a significant 
economic impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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 proposed 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made a preliminary 
determination 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 proposed rule involves a safety zone on all waters of 
the Lower Mississippi River from MM 953.8 to MM 887.0, the Upper 
Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 
981.5 to MM 978.5, during demolition of the federal levees on the Lower 
Mississippi River and utilization of the Bird's Point-New Madrid 
Floodway. Normally such actions are categorically excluded from further 
review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental 
Consideration supporting this determination is available in the docket 
where indicated under ADDRESSES. We seek any comments or information 
that may lead to the discovery of a significant environmental impact 
from this proposed rule.

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.

V. 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. Your comment can help shape the outcome of this rulemaking. 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 or 
recommendation.
    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 CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at https://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 or a 
final rule is published.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard is 
proposing to amend 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 160.5; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.T846 to read as follows:


Sec.  165.T846  Safety Zone; Lower Mississippi River, Ohio River, and 
Upper Mississippi River, Bird's Point-New Madrid Floodway

    (a) Location. The temporary safety zone will encompass all waters 
of the Lower Mississippi River from mile marker (MM) 953.8 to MM 887.0, 
the

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Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from 
MM 981.5 to MM 978.5.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting, or anchoring within this 
temporary safety zone is prohibited unless authorized by the Captain of 
the Port Sector Ohio Valley or a designated representative.
    (2) To seek permission to enter, contact the Captain of the Port 
Sector Ohio Valley or a designated representative by radio VHF-FM 
Channel 16 or via phone at 502-779-5422. Those in the safety zone must 
comply with all lawful orders or directions given to them by the 
Captain of the Port Sector Ohio Valley or a designated representative.
    (c) Enforcement period. The COTP or a designated representative 
will inform the public of the enforcement date and times for this 
safety zone, as well as any emergent safety concerns that may delay the 
enforcement of the zone through Local Notices to Mariners (LNMs), and/
or actual notice.

    Dated: March 14, 2019.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2019-05560 Filed 3-22-19; 8:45 am]
 BILLING CODE 9110-04-P