[Federal Register Volume 84, Number 120 (Friday, June 21, 2019)]
[Rules and Regulations]
[Pages 29067-29069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13179]
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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: Final rule.
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SUMMARY: The Coast Guard is establishing 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 rule prohibits 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: This rule is effective July 22, 2019.
[[Page 29068]]
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0123 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 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
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 purpose of this rule 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 informed us that it might 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. In response, on
March 25, 2019, the Coast Guard published a notice of proposed
rulemaking (NPRM) titled Safety Zone; Lower Mississippi River, Ohio
River, and Upper Mississippi River, Bird's Point-New Madrid Floodway
(84 FR 11035). There we stated why we issued the NPRM, and invited
comments on our proposed regulatory action related to this potential
demolition of the federal levees on the Lower Mississippi River and
utilization of the Bird's Point-New Madrid Floodway. During the comment
period that ended April 24, 2019, we received one comment.
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 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 is a safety concern for anyone in the
vicinity 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.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received one comment on our NPRM published March
25, 2019. The comment affirmed the need for a safety zone during the
demolition of the federal levees to protect people and vessels. There
are no changes in the regulatory text of this rule from the proposed
rule in the NPRM.
This rule establishes 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 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.
No vessels or persons are permitted to enter the proposed safety
zone without obtaining permission from the COTP or a designated
representative.
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, duration, and time-of-day of the temporary safety zone. The
safety zone only impacts a relatively small portion of the waterway and
will only be in effect during the demolition process and approximately
36 hours after the demolition to allow for stabilization of the
waterway. After approximately 36 hours, vessels would be allowed to
transit. Additionally, the safety zone will 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 received no comments from the Small Business
Administration on this rulemaking. 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
[[Page 29069]]
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
Order13132.
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.
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 Environmental Planning COMDTINST 5090.1 (series),
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 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. It is categorically excluded from further review under
paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental
Planning Implementing Procedures 5090.1. 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 record
keeping 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.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
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.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into, transiting, or anchoring within
this temporary safety zone is prohibited unless authorized by the
Captain of the Port Sector Ohio Valley (COTP) or a designated
representative.
(2) To seek permission to enter, contact the COTP 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 COTP 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: June 17, 2019.
A.M. Beach,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2019-13179 Filed 6-20-19; 8:45 am]
BILLING CODE 9110-04-P