[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Rules and Regulations]
[Pages 16211-16213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07770]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0222]
RIN 1625-AA00
Safety Zone; Mississippi Sound, Biloxi, MS
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone in
Mississippi Sound in Biloxi, MS. The safety zone is needed to protect
persons, vessels, and the marine environment in the waters adjacent to
Biloxi Beach during an airshow in Biloxi, MS. This rulemaking restricts
transit into, through, and within the regulated area unless
specifically authorized by the Captain of the Port Sector Mobile (COTP)
or a designated representative.
DATES: This rule is effective from 8 a.m. on May 1, 2019 through 5 p.m.
on May 5, 2019.
ADDRESSES: You may find supplemental documents identified in the
preamble of this rule by searching the docket number USCG-2019-0222 on
the Federal eRulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
rulemaking, call or email LT Kyle D. Berry, Sector Mobile, Waterways
Management Division, U.S. Coast Guard; telephone 251-441-5940, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
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
On January 17, 2019, the marine event sponsor for the Thunder over
the Sound Air Show submitted an application for a marine event permit.
The Captain of the Port Sector Mobile (COTP) has determined a safety
zone is needed to protect the persons, vessels, and marine environment
in the waters adjacent to Biloxi during the Thunder over the Sound
marine event.
The Coast Guard is issuing this safety zone 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 safety zone 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 an NPRM with respect to this
rule because it is impracticable. It is impractical to publish an NPRM
because this safety zone must be established by May 1, 2019, and we
lack sufficient time to provide a reasonable comment period and then
consider those comments before issuing the rule.
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 would
be contrary to the public interest because immediate action is needed
to respond to potential safety hazards associated with the Thunder over
the Sound air show.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70041. The Captain of the Port Sector Mobile has determined that
potentials hazards associated with the Thunder over the Sound air show
will be a safety concern for persons, vessels, and the marine
environment within the area adjacent to Biloxi Beach in the Mississippi
Sound. The purpose of this rule is to ensure safety of the public,
participants, spectators, and the marine environment in the regulated
area during the event.
IV. Discussion of the Rule
This rule establishes a safety zone from May 1st, 2019 until May
5th, 2019, which will be enforced from 8 a.m. through 5 p.m. daily. The
safety zone is intended to protect the persons, vessels, and marine
environment from hazards associated with the Thunder over the Sound Air
Show.
The safety zone takes place over the Mississippi Sound in Biloxi,
MS, encompassing the square show box between positions: Northwest
Corner--30[deg]23'33.16'' N, 88[deg]55'54.89'' W; Northeast Corner--
30[deg]23'33.55'' N,
[[Page 16212]]
88[deg]53'37.88'' W; Southwest Corner--30[deg]23'30.47'' N,
88[deg]55'54.75'' W; Southeast Corner--30[deg]23'30.88'' N,
88[deg]53'37.77'' W. No vessel or person will be permitted to enter,
transit within or through, or exit the safety zone without obtaining
permission from the COTP or a designated representative. A designated
representative will be a Patrol Commander (PATCOM). Spectator vessels
desiring to enter, transit through or within, or exit the safety zone
may request permission to enter the regulated from a PATCOM. When
permitted to transit the area vessels must follow restrictions within
the safety zone as directed by the Coast Guard, and must operate at a
minimum safe navigation speed in a manner which will not endanger
participants in the safety zone or any other vessels.
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 safety zone 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 determination is based on the size, location, and
duration of the safety zone. This safety zone impacts a small area of
the Mississippi Sound adjacent to Biloxi Beach for nine hours each day
over five days. Vessel traffic will be informed about the safety zone
through local notices to mariners. Moreover, the Coast Guard will issue
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the
zone and the rule allows vessels to seek permission to transit 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
IV.A above, this 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 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 encompassing the square show box between the following
positions adjacent to Biloxi Beach: Northwest Corner--30[deg]23'33.16''
N, 88[deg]55'54.89'' W; Northeast Corner--30[deg]23'33.55'' N,
88[deg]53'37.88'' W; Southwest Corner--30[deg]23'30.47'' N,
88[deg]55'54.75'' W; Southeast Corner--30[deg]23'30.88'' N,
88[deg]53'37.77'' W. It is 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 Record of Environmental Consideration (REC)
supporting this determination would be
[[Page 16213]]
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, 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.T08-0222 to read as follows:
Sec. 165.T08-0222 Safety Zone; Mississippi Sound, Biloxi, MS.
(a) Location. The following area is a safety zone: Navigable waters
in the Mississippi Sound encompassing the square show box adjacent to
Biloxi Beach bound by the following positions: Northwest Corner--
30[deg]23'33.16'' N, 88[deg]55'54.89'' W; Northeast Corner--
30[deg]23'33.55'' N, 88[deg]53'37.88'' W; Southwest Corner--
30[deg]23'30.47'' N, 88[deg]55'54.75'' W; Southeast Corner--
30[deg]23'30.88'' N, 88[deg]53'37.77'' W.
(b) Effective period. This section is effective from 8 a.m. on May
1, 2019 until 5 p.m. on May 5, 2019.
(c) Enforcement period. This section will be enforced from 8 a.m.
until 5 p.m. each day of the effective period.
(d) Regulations. (1) In accordance with the general regulations in
Sec. 165.23, entry into, transiting through, or exiting from this area
is prohibited unless authorized by the Captain of the Port Sector
Mobile (COTP) or a designated representative. A designated
representative may be a Patrol Commander (PATCOM). The PATCOM will be
aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM
may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign
``PATCOM''.
(2) All persons and vessels not registered with the event sponsor
as participants or official patrol vessels are considered spectators.
The ``official patrol vessels'' consist of any Coast Guard, state, or
local law enforcement and sponsor provided vessels assigned or approved
by the COTP to patrol the regulated area.
(3) Spectator vessels desiring to transit the regulated area may do
so only with prior approval of the PATCOM and when so directed by that
officer will be operated at a minimum safe navigation speed in a manner
that will not endanger participants in the zone or any other vessels.
(4) No spectator vessel shall anchor, block, loiter, or impede the
through transit of participants or official patrol vessels in the
regulated area during the effective dates and times, unless cleared for
entry by or through an official patrol vessel.
(5) Any spectator vessel may anchor outside the regulated area, but
may not anchor in, block, or loiter in a navigable channel. Spectator
vessels may be moored to a waterfront facility within the regulated
area in such a way that they shall not interfere with the progress of
the event. Such mooring must be complete at least 30 minutes prior to
establishment of the regulated area and remain moored through duration
of the event.
(6) The Patrol Commander may forbid and control the movement of all
vessels in the regulated area. When hailed or signaled by an official
patrol vessel, a vessel shall come to an immediate stop and comply with
the directions given. Failure to do so may result in expulsion from the
area, citation for failure to comply, or both.
(7) The Patrol Commander may terminate the event or the operation
of any vessel at any time it is deemed necessary for the protection of
life or property.
(8) The Patrol Commander will terminate enforcement of the safety
zone at the conclusion of the event.
(9) Entry into this zone is prohibited unless authorized by the
COTP or a designated representative.
(10) Persons or vessels seeking to enter into or transit through
the zone must request permission from the COTP or a designated
representative. They may be contacted on VHF-FM channels 16 or by
telephone at 251-441-5976.
(11) If permission is granted, all persons and vessels must comply
with the instructions of the COTP or designated representative.
(e) Informational broadcasts. The COTP or a designated
representative will inform the public through Broadcast Notices to
Mariners of the enforcement period for the temporary safety zone as
well as any changes in the planned schedule.
Dated: April 12, 2019.
M.R. McLellan,
Captain, U.S. Coast Guard, Captain of the Port Sector Mobile.
[FR Doc. 2019-07770 Filed 4-17-19; 8:45 am]
BILLING CODE 9110-04-P