[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Rules and Regulations]
[Pages 31490-31492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14109]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0186]
RIN 1625-AA00
Safety Zone; Missouri River, Mile Markers 366.3 to 369.8, Kansas
City, MO
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone for
certain waters of the Missouri River from mile marker (MM) 366.3 to MM
369.8. This action is necessary to provide for the safety of life on
these navigable waters near Kansas City, MO, during an air show from
July 3 through July 7, 2019. This regulation prohibits persons and
vessels from being in the safety zone unless authorized by the Captain
of the Port Sector Upper Mississippi River or a designated
representative.
DATES: This rule is effective from 11 a.m. on July 3, 2019 through 7
p.m. on July 7, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0186 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, Waterways
Management Division, Sector Upper Mississippi River, 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
U.S.C. United States Code
II. Background Information and Regulatory History
On March 14, 2019, the KC Air Show Charities notified the Coast
Guard that it would be conducting an airshow over the Missouri River
near Kansas City, MO on July 3, 2019 from 2 p.m. to 6 p.m., July 4,
2019 from noon to 6 p.m., and from 2 p.m. to 6 p.m. each day from July
5, 2019 through July 7, 2019. In response, on April 15, 2019, the Coast
Guard published a notice of proposed rulemaking (NPRM) titled Safety
Zone; Missouri River, Mile Markers 366.3 to 369.8, Kansas City, MO (84
FR 15165). There we stated why we issued the NPRM, and invited comments
on our proposed regulatory action related to this airshow. During the
comment period that ended on May 15, 2019, we received 17 comments.
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 of
this rule would be contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with the air show.
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 Upper
Mississippi River (COTP) has determined that potential hazards
associated with the air show to take place from July 3, 2019 through
July 7, 2019 will be a safety concern for persons and vessels in that
area. The purpose of this rule is to ensure safety of life on these
navigable waters before, during, and after the scheduled event.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received seventeen comments on our NPRM
published on April 15, 2019. Six of those commenters approved the
establishment of the safety zone in that area. Three other commenters
asked if there was a detour around the zone. Due to the limited width
of the Missouri River, it is not possible to navigate a vessel around
the safety zone. However, this rule provides plenty of notice for
potential travelers to plan ahead for this event. In addition, anyone
desiring to enter or pass through this zone, may request permission
from the COTP or a designated representative. Such requests will be
considered on a case-by-case basis considering all circumstances, and
mainly the safety of the requested passage to the vessel and the show
participants.
Three commenters asked the Coast Guard to list examples under which
a vessel might be allowed to enter the zone and under which it would be
excluded. One of these commenters specifically asked how ``obviously
risky vessels'' would be treated if they request permission to enter
the zone. And the other one asked under what circumstances ``small
entities'' would be allowed to enter the zone. As stated above and in
the NPRM, all requests for entry will be handled on a case-by-case
basis. Any vessel that is deemed unsafe by the COTP or a designated
representative will not be allowed to enter the zone. As another
example, a vessel in the state of emergency, or a medical vessel, may
be allowed to enter the zone if it is deemed safe by the COTP or a
designated representative.
Two commenters were concerned about the enforcement times. One of
them indicated that the enforcement times should be tailored to the
exact length of the air show, and the other one indicated that a bigger
time cushion would be needed it the show was delayed. The Coast Guard
agrees that the time cushion should be provided to account for any
delays, including weather, vessel entries, safety reasons, etc. In
response to these comments, the Coast Guard has modified this rule's
enforcement times to make it more flexible. We have added another day,
July 3, 2019, during which the rule will be enforced from 1 p.m. to 7
p.m. We have also extended the beginning and end of the enforcement
period as follows. Instead of noon--6 p.m. on July 4, 2019, the rule
will be enforced 11 a.m.-7 p.m., and instead of 2 p.m.-6 p.m. on July
5-7, 2019, the rule will be enforced 1 p.m.-7 p.m.
Three commenters were concerned about business vessels that might
be unable to transit the area safely or at all. One of these commenters
asked the Coast Guard to move the safety zone to land. The other one
suggested that the government compensate the vessels unable to transit
the area. And the third commenter asked if business vessels would be
safe transiting the area. The Coast Guard cannot move the zone because
it does not have the authority to establish a marine safety zone on
land. The comment about relief for small entities was of general nature
and did not provide the Coast Guard with specific information requested
in the NPRM. We asked that a business that believes it is qualified as
a small entity and that the NPRM had a significant economic impact on
it, to provide the Coast Guard with an explanation on
[[Page 31491]]
why that specific business thought it qualified as such an entity and
to what degree the rule would affect it. As to the comment about the
safety of business vessels, the Coast Guard stresses that the safety of
persons and vessels is the primary reason this safety zone. As stated
above, the COTP or a designated representative may allow vessels to
enter the zone on a case-by-case basis considering all circumstances,
including the safety of a business vessel.
Another three commenters asked how the zone would be enforced and
to how to contact the COTP. As stated in the NPRM, the COTP can be
contacted at (314) 269-2332.
For the reasons stated above, the only changes in the regulatory
text of this rule from the proposed rule in the NPRM is the
modification of the enforcement time to allow for more flexibility. We
have added another day, July 3, 2019, during which the rule will be
enforced from 1 p.m. through 7 p.m. We have also extended the beginning
and end of the enforcement period as follows. Instead of noon through 6
p.m. on July 4, 2019, the rule will be enforced 11 a.m. through 7 p.m.,
and instead of 2 p.m. through 6 p.m. on July 5-7, 2019, the rule will
be enforced 1 p.m. through 7 p.m.
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 duration,
location, and size of the safety zone. This zone will be in effect for
up to eight hours per day for a total of five days and will affect
three and one-half miles of the Missouri River. Additionally, persons
and vessels would be allowed to request entry into the zone from the
COTP or a designated representative.
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
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.
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.
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 that will last up to
eight hours per day for five days along three and one-half miles of the
Missouri River for scheduled air show. This action 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 preliminary 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.
[[Page 31492]]
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 160.5; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.T08-0186 to read as follows:
Sec. 165.T08-0186 Safety Zone; Missouri River, Mile Markers 366.3 to
369.8, Kansas City, MO.
(a) Location. The following area is a temporary safety zone: all
navigable waters of the Missouri River from Mile Marker (MM) 366.3 to
MM 369.8 near Kansas City, MO.
(b) Period of enforcement. This section will be enforced from 1
p.m. through 7 p.m. on July 3, 2019; from 11 a.m. through 7.p.m. on
July 4, 2019; and from 1 p.m. through 7 p.m. on each day from July 5,
2019 through July 7, 2019.
(c) Regulations. (1) In accordance with the general regulations in
Sec. 165.23, persons and vessels are prohibited from entering the
safety zone unless authorized by the Captain of the Port Sector Upper
Mississippi River (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) Persons or vessels desiring to enter into or pass through the
zone must request permission from the COTP or a designated
representative. They may be contacted by telephone at 314-269-2332.
(3) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
(d) Informational broadcasts. 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 Broadcast Notice to Mariners,
Local Notices to Mariners, and/or actual notice.
Dated: June 26, 2019.
R. M. Scott,
Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper
Mississippi River.
[FR Doc. 2019-14109 Filed 7-1-19; 8:45 am]
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