[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Rules and Regulations]
[Pages 43691-43694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18110]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG-2019-0437]
RIN 1625-AA08
Special Local Regulations; Upper Mississippi River, 839.5 to
840.5 St. Paul, MN
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing special local regulations
during the ``Red Bull Flugtag'' event to be held on the navigable
waters of the Upper Mississippi River in St. Paul, MN on September 7,
2019. These special local regulations are necessary to provide for the
safety of life on navigable waters during the event. These special
local regulations will establish primary and secondary exclusion areas,
and a spectator area. Additionally, these areas will have a specific
set of restrictions as described in Section IV.
DATES: This rule is effective 8 a.m. to 5 p.m. on September 7, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0437 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 May 15, 2019, Red Bull North America notified the Coast Guard
that it will be holding a Red Bull Flugtag event on the Upper
Mississippi River at Harriett Island Park in St. Paul, MN from 11 a.m.
to 4 p.m. on September 7, 2019. Flugtag is a homemade, non-powered
flying machine competition. Contestants launch their machines from a 22
feet high platform built over the Upper Mississippi River. Potential
hazards from this event include the temporary installation of a
structure along the right descending bank of the river, temporary
channel obstructions until the Flugtag machines are recovered from the
river, and the presence of debris and persons in the water within the
event perimeter. In response, on June 14, 2019 the Coast Guard
published a notice of proposed rulemaking (NPRM) titled Special Local
Regulations, Upper Mississippi River, St. Paul MN. (84 FR 27743).
During the comment period that ended July 15, 2019 we received three
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 the
regulated area must be established by September 7, 2019 to ensure the
safety of vessels, persons, and the navigable waters in the regulated
area before, during, and after the scheduled event.
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 purpose of this rule is to
ensure the safety of vessels, persons, and the navigable waters in the
regulated area before, during, and after the scheduled event.
IV. Discussion of Comments, Changes, and the Rule
The Coast Guard received three comments in response to the NPRM.
The sponsor for the event submitted a comment via email requesting
to extend the duration of the regulated area from 8 a.m. to 5 p.m. to
account for the setup and break down of the event. As a result of this
email, the duration of the regulated area has been extended.
Another comment was received from an industry representative in
regards to maintaining proper patrol vessel span of control to ensure
the safety of not only the spectators and the participants, but anyone
wishing to transit in the area. He cited issues experienced during a
previous event. Additionally, the duration of the waterway closure was
a concern as it would hinder commercial transit on the waterway. The
Coast Guard acknowledges the concerns based on previous events of
similar nature and the need to ensure an adequate number of patrol
craft to enforce these regulations. The Coast Guard is working very
closely with our port partners and law enforcement agencies to ensure
adequate resources are available to maintain the safety of the event.
Additionally, the Coast Guard is modifying the rule as proposed in the
NPRM to establish a total of three zones. The primary and secondary
exclusion areas will be closed to general vessel traffic from 8 a.m. to
5 p.m., however, the spectator zone which encompasses the majority of
the river width in the regulated area will only be regulated from 10:30
a.m. to 4:30 p.m. The zones will be described in detail in the actual
text of this temporary final rule.
Another comment was received from the president of a business that
operates passenger vessels in the area of the Flugtag event. This
person was concerned about their ability to safely operate around the
estimated 300 spectator vessels that could be on the waterway. As a
result of this comment, the Coast Guard adjusted the special local
regulation restrictions from those proposed in the NPRM to provide for
a
[[Page 43692]]
safe passenger vessel transit area throughout the duration of the event
as detailed below.
With consideration to the comments received, the Coast Guard is
establishing special local regulations on specified waters of the Upper
Mississippi River on September 7, 2019. The regulated area extends from
mile marker 839.5 to 840.5 across the entire width of the Upper
Mississippi River. The regulations will be effective from 8 a.m. to 5
p.m. for the primary and secondary exclusion areas as described below.
The designated spectator area will be regulated from 10:30 a.m. to 4:30
p.m.
Within the overall regulated area, there are three unique areas,
each with their own specific restrictions. The areas are as follows: A
primary exclusion area, a secondary exclusion area, and a designated
spectator area.
The primary exclusion area, where all persons and vessels, except
those persons and vessels participating in the competition, are
prohibited from entering, transiting through, anchoring in, or
remaining within, is established within lines connecting the following
points: From point one, at position latitude 44[deg]56'23'' N,
longitude 93[deg]05'44'' W to point two at position latitude
44[deg]56'24'' N, longitude 93[deg]05'46'' W; from point two to point
three at position latitude 44[deg]56'18'' N, longitude 93[deg]05'54''
W; and from point three to point four at position latitude
44[deg]56'17'' N longitude 93[deg]05'52'' W. This area will be enforced
from 8 a.m. to 5 p.m.
The secondary exclusion area, where all persons and vessels, except
commercial vessels are prohibited from entering, anchoring in, or
remaining within, with the exception of continuous transverse travel
across the area, is established within lines connecting the following
points: From point five, at position latitude 44[deg]56'17'' N,
longitude 93[deg]05'52'' W; to point six at position latitude
44[deg]56'18'' N, longitude 93[deg]05'54'' W; from point six to point
seven at latitude 44[deg]56'00'' N, longitude 93[deg]06'15'' W; from
point seven to point eight on latitude 44[deg]55'57'' N, longitude
93[deg]06'12'' W. This area will be enforced from 8 a.m. to 5 p.m.
The designated spectator area is located between mile markers 840.5
and 839.5, outside of the primary and secondary exclusion areas. All
vessels are prohibited from transiting in excess of idle speed, unless
authorized by the Coast Guard Patrol Commander. Spectator vessels are
authorized to enter, transit through, anchor in, or remain within all
waters of the spectator area from 10:30 a.m. until 4:30 p.m. Vessels
other than spectator vessels and those directly involved in the event
will only be allowed to safely transit the regulated area when the
Coast Guard Patrol Commander has deemed it safe to do so. All spectator
vessels must disperse from the navigational channel by 4:30 p.m. at
which time the standard navigation rules will be enforced.
Due to the need for vessel control during the event, the Coast
Guard will temporarily restrict vessel traffic in the regulated
exclusion area to provide for the safety of participants, spectators
and other transiting vessels. The Coast Guard will provide notice of
the special local regulations by Local Notice to Mariners (LNM),
Broadcast Notice to mariners (BNM) and press release.
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 data collected
from previous events in regards to the risk associated with this event.
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
regulated area 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 due to the event taking place for one day, for
a only a nine hour period and on a one mile stretch of the Upper
Mississippi River.
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
[[Page 43693]]
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 special local regulation lasting nine
hours that will prohibit entry of vessels at certain zones on certain
waters of the Upper Mississippi River. It is categorically excluded
from further review under paragraph L61 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 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 100 as follows:
PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS
0
1. The authority citation for part 100 continues to read as follows:
Authority: 46 U.S.C 70041; 33 CFR 1.05-1.
0
2. Add Sec. [thinsp]100.35-T08-0437 to read as follows:
Sec. [thinsp]100.35-T08-0437 Special Local Regulation; Upper
Mississippi River, 839.5 to 840.5 St. Paul, MN.
(a) Regulated areas. The following regulated areas are established
as special local regulations. All coordinates are North American Datum
1983.
(1) General regulated area. All waters of the Upper Mississippi
River, contained within mile markers 839.5 to 840.5.
(2) Primary exclusion area. All waters of the Upper Mississippi
River, contained within lines connecting the following points: From
point one, at position latitude 44[deg]56'23'' N, longitude
93[deg]05'44'' W to point two at position latitude 44[deg]56'24'' N,
longitude 93[deg]05'46'' W; from point two to point three at position
latitude 44[deg]56'18'' N, longitude 93[deg]05'54'' W; and from point
three to point four at position latitude 44[deg]56'17'' N, longitude
93[deg]05'52'' W. This area will be enforced from 8 a.m. to 5 p.m.
(3) Secondary exclusion area. All waters of the Upper Mississippi
River, contained within lines connecting the following points: From
point five, at position latitude 44[deg]56'17'' N, longitude
93[deg]05'52'' W; to point six at position latitude 44[deg]56'18'' N,
longitude 93[deg]05'54'' W; from point six to point seven at latitude
44[deg]56'00'' N, longitude 93[deg]06'15'' W; from point seven to point
eight at position latitude 44[deg]55'57'' N, longitude 93[deg]06'12''
W. This area will be enforced from 8 a.m. to 5 p.m.
(3) Designated spectator area. All other waters of the Upper
Mississippi River between mile markers 839.5 (Wabasha St. Bridge) and
840.5 (Smith Avenue Bridge). The designated spectator area will be
enforced from 10:30 a.m. to 4:30 p.m. Spectator vessels are required to
disperse by 4:30 p.m. to allow the river to re-open to all vessel
traffic.
(b) Definitions. (1) Coast Guard Patrol Commander means a
commissioned, warrant, or petty officer of the U.S. Coast Guard who has
been designated by the Captain of the Port Sector Upper Mississippi
River (COTP).
(2) Official Patrol Craft means any vessel assigned or approved by
the COTP with a commissioned, warrant, or petty officer on board and
displaying a Coast Guard ensign.
(3) Participant means all persons and vessels participating in the
Red Bull Flugtag event under the auspices of the Marine Event Permit
issued to the event sponsor and approved by the COTP.
(4) Spectator means all persons and vessels not registered with the
event sponsor as participants or official patrol who are present on the
water to observe the event.
(c) Special local regulations. (1) The Coast Guard Patrol Commander
may forbid and control the movement of all vessels and persons in the
regulated area. When hailed or signaled by an official patrol vessel, a
vessel or person in the regulated area shall immediately comply with
the directions given. Failure to do so may result in expulsion from the
area, citation for failure to comply, or both.
(2) The Coast Guard Patrol Commander may terminate the event, or
the operation of any participant in the event, at any time it is deemed
necessary for the protection of life or property.
(3) All Coast Guard vessels enforcing this regulated area can be
contacted on marine band radio VHF-FM channel 16 (156.8 MHz).
(4) Only participants and official patrol vessels are allowed to
enter the primary exclusion area.
(5) Only commercial vessels, other vessels transiting transversely,
and official patrol are allowed to enter the secondary exclusion area.
(6) Spectators are allowed inside the regulated area only if they
remain within the designated spectator area. Spectators will be
permitted to anchor within the designated spectator area. All vessels
moving within the designated spectator area shall do so at the slowest
safe speed.
(7) Commercial vessels, and vessels other than participants and
spectator vessels, may contact the Coast Guard Patrol Commander to
request permission to pass through the regulated area. If permission is
granted, vessels must pass directly through the regulated area,
remaining outside the exclusion areas, at the slowest safe speed and
without loitering.
(d) Notice. The Coast Guard will publish a notice in the Eighth
Coast Guard District Local Notice to Mariners and issue a marine
information broadcast on VHF-FM marine band radio announcing specific
event date and times.
[[Page 43694]]
(e) Enforcement period. (1) The designated spectator area will be
enforced from 10 a.m. to 4:30 p.m.
(2) The primary and secondary exclusion areas will be enforced from
8 a.m. to 5 p.m.
Dated: August 15, 2019.
S.A. Stoermer,
Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi
River.
[FR Doc. 2019-18110 Filed 8-21-19; 8:45 am]
BILLING CODE 9110-04-P