[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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