[Federal Register Volume 84, Number 119 (Thursday, June 20, 2019)]
[Rules and Regulations]
[Pages 28738-28741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12944]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0334]
RIN 1625-AA00


Safety Zone; Upper Mississippi River, Miles 109.9 to 647.8, 
Chester, IL to Guttenberg, IA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is extending a temporary safety zone on the 
navigable waters of the Upper Mississippi River from mile marker (MM) 
109.9 to MM 647.8 between Chester, IL and Guttenberg, IA. This action 
is necessary to provide for the safety of persons, vessels, and the 
marine environment on these navigable waters as a result of increasing 
flood conditions on the river that threaten to overtop levees. Entry of 
vessels or persons into this zone is prohibited unless specifically 
authorized by the Captain of the Port Sector Upper

[[Page 28739]]

Mississippi River (COTP) or a designated representative.

DATES: This rule is effective without actual notice from June 20, 2019 
through July 1, 2019. For the purposes of enforcement, actual notice 
will be used from June 1, 2019 through June 20, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0334 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
UMR Upper Mississippi River
WAP Waterways Action Plan

II. Background Information and Regulatory History

    The Coast Guard is extending 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 and 
high flow of the river.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that 
potential hazards associated with flood waters threaten to overtop 
levees along the river due to reports that vessel traffic in the 
affected area is causing water to overtop levees resulting in increased 
damage to the levees and flooding impacts to local communities and 
residential areas. 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

    This rule extends a current temporary safety zone due to 
unanticipated longevity and geographic scope of flooding conditions and 
establishes a temporary safety zone from June 1, 2019 through July 1, 
2019, or until cancelled by the COTP, whichever occurs first. The 
safety zone will cover all navigable waters of the Upper Mississippi 
River from MM 109.9 to MM 647.8 unless reduced in scope by the COTP as 
flood conditions warrant to prevent damage to residential areas and the 
overtopping of levees.
    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 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 the increasing flow rates and river height. 
When the Upper Mississippi River gauge in St. Louis, MO reaches 38 feet 
above zero, increased flow rates and vertical clearances associated 
with bridges in the St. Louis area between MM 179 and MM 184 result in 
difficulty with making safe approaches to the bridges and increase the 
potential for bridge strikes. When the Upper Mississippi River gauge at 
St. Louis, MO reaches 45 feet above zero, increased flow rates and 
river heights coupled with passing vessels will threaten overtopping or 
failure of levees between MM 109.9 and MM 179. Additionally, above St. 
Louis, MO, between MM 184 to 647.8, increased flow rates and river 
heights coupled with passing vessels will threaten overtopping or 
failure of levees and as levees fail or are overtopped potentially 
cause destructive wake effects to residents and other structures in the 
inundated areas. Moreover, the Coast Guard will issue a BNM via VHF-FM 
marine channel 16 about the zones, 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

[[Page 28740]]

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 
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 538 mile stretch of the 
Upper Mississippi River that is experiencing significant flooding. 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: 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. Revise Sec.  165.T08-0334 to read as follows:


Sec.  165.T08-0334  Safety Zone; Upper Mississippi River, Miles 109.9, 
Chester, IL to 647.8 Guttenberg, IA.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Upper Mississippi River from mile marker (MM) 109.9 to MM 
647.8. This section will be enforced on all navigable waters of the 
Upper Mississippi River from MM 109.9 to MM 647.8, unless reduced in 
scope by the Captain of the Port Sector Upper Mississippi River (COTP) 
as flood conditions warrant.
    (b) Effective period. This rule is effective without actual notice 
from June 20, 2019 until July 1, 2019, or until cancelled by the COTP, 
whichever occurs first. For the purposes of enforcement, actual notice 
will be provided on June 1, 2019 until June 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

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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: June 1, 2019.
S.A. Stoermer,
Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi 
River.
[FR Doc. 2019-12944 Filed 6-19-19; 8:45 am]
 BILLING CODE 9110-04-P