[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Proposed Rules]
[Pages 44794-44797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18359]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0614]
RIN 1625-AA00


Safety Zone; Neches River, Beaumont, TX

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone on the navigable waters of the Neches River extending 500-feet on 
either side of the Kansas City Southern Railroad Bridge that crosses 
the Neches River in Beaumont, TX. The safety zone is necessary to 
protect persons, bridge, and property on or near the bridge from 
potential damage from passing vessels until missing and/or damaged 
fendering systems are repaired or replaced. Entry of certain vessels or 
persons into this zone would be prohibited unless specifically 
authorized by the Captain of the Port Marine Safety Unit Port Arthur or 
a designated representative. We

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invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before September 11, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0614 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Mr. Scott Whalen, Marine Safety Unit 
Port Arthur, U.S. Coast Guard; telephone 409-719-5086, 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, Purpose, and Legal Basis

    On April 19, 2018, the Coast Guard was notified that the wood 
fendering systems designed to protect bridge support columns of the 
Kansas City Southern Railroad Company's bridge (KSC) from strikes by 
vessels transiting under the bridge had been damaged or destroyed by 
Hurricane Harvey. The south bank column protection fenders are missing 
and the north bank column protection fenders are severely damaged. KCS 
indicated that strikes to the support columns could compromise the 
bridge structure. In response, on May 7, 2018 the Coast Guard published 
a temporary final rule; request for comment titled Safety Zone; Neches 
River, Beaumont, TX (83 FR 19965). During the comment period that ended 
on May 29, 2018, we received no comments. The safety zone was 
established on May 7, 2018, extended on September 5, 2018 (83 FR 45047) 
and extended again on January 31, 2019 (84 FR 530) via temporary final 
rules titled Safety Zone; Neches River, Beaumont, TX. The zone is 
scheduled to expire on September 30, 2019. Repairs are not yet 
completed leaving the bridge structural columns vulnerable to vessel 
strikes.
    The Captain of the Port Marine Safety Unit Port Arthur (COTP) has 
determined that potential hazards posed by the unprotected bridge 
columns are a safety concern to the KCS Bridge and to persons and 
property on or near the bridge. The purpose of this rule is to provide 
for the safety of the KCS Bridge and persons and property on or near 
the bridge.
    The Coast Guard is issuing this notice of proposed rulemaking 
(NPRM) with a 15-day prior notice and opportunity to comment pursuant 
to section (b)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 
553). This provision authorizes an agency to publish a rule in less 
than 30 days before its effective date for ``good cause found and 
published with the rule.'' Under 5 U.S.C. 553(b)(3)(B), the Coast Guard 
finds that good cause exists for publishing this NPRM with a 15-day 
comment period because it is impractical to provide a 30-day comment 
period. This proposed safety zone is necessary to ensure the safety of 
vessels and persons during the marine events. It is impracticable to 
publish an NPRM with a 30-day comment period because we must establish 
this safety zone by September 30, 2019. A 15-day comment period would 
allow the Coast Guard to provide for public notice and comment, but 
also update the proposed regulation soon enough that the length of the 
notice and comment period does not compromise public safety.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone that extends 500-
feet on either side of the KCS Bridge that crosses the Neches River in 
Beaumont, TX in approximate location 30[deg] 04'54.8'' N 
094[deg]05'29.4'' W. The duration of the zone is intended to protect 
the bridge support columns as well as persons and property on or near 
the bridge until the bridge fendering is repaired or replaced. Only 
vessels less than 65 feet in length and not engaged in towing would be 
authorized to enter the zone, unless otherwise permitted by the COTP or 
a designated representative.
    Persons and vessels desiring to enter the safety zone would have to 
request permission from the COTP or a designated representative. They 
may be contacted through Vessel Traffic Service (VTS) on channels 65A 
or 13 VHF-FM, or by telephone at (409) 719-5070.
    Permission to transit through the bridge would be based on weather, 
tide and current conditions, vessel size, horsepower, and availability 
of assist vessels. All persons and vessels permitted to enter this 
temporary safety zone would comply with the lawful orders or directions 
given to them by COTP or a designated representative.
    Intentional or unintentional contact with any part of the bridge or 
associated structure, including fendering systems, support columns, 
spans or any other portion of the bridge, would be strictly prohibited. 
Any contact with the bridge or associated structures would have to be 
immediately reported to VTS Port Arthur on channels 65A, 13 or 16 VHF-
FM or by telephone at (409) 719-5070.
    The Coast Guard would inform the public of the effective period of 
this safety zone through VTS Advisories, Broadcast Notices to Mariners 
(BNMs), Local Notice to Mariners (LNMs), and/or Marine Safety 
Information Bulletins (MSIBs) as appropriate.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM 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 nature of 
vessel traffic in the area and the location, and duration of the safety 
zone. This rule would be only affect certain vessels transiting the 
upper reaches of the Neches River in Beaumont, TX, and would terminate 
once the necessary repairs are completed for the bridge. The Coast 
Guard would issue a VTS Advisory concerning the zone, and the rule 
allows vessels to seek permission to enter the zone.

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 certifies under 5 U.S.C. 605(b) that this 
proposed rule would not

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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 might be small entities, for the reasons stated in section 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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 proposed 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because it would 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 proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made 
a preliminary determination 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 proposed rule involves a safety 
zone that would prohibit entry within 500-feet of either side of the 
KCS Bridge that crosses the Neches River in Beaumont, TX. Normally such 
actions are categorically excluded from further review under paragraph 
L60(d) 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 included in the docket 
with this rule where indicated under ADDRESSES. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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.T08-0614 to read as follows:


Sec.  165.T08-0614  Safety Zone; Neches River, Beaumont, TX

    (a) Location. The following area is a safety zone: All navigable 
waters extending 500-feet on either side of the Kansas City Southern 
Railroad Bridge that crosses the Neches River in Beaumont, TX in 
approximate location 30[deg]04'54.8'' N 094[deg]05'29.4'' W.
    (b) Effective period. This section is effective from 1 a.m. on 
October 1, 2019

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through midnight on January 31, 2020, or until missing and/or damaged 
fendering systems are repaired or replaced, whichever occurs first.
    (c) Regulations. (1) No vessel may enter or remain in the safety 
zone except:
    (i) A vessel less than 65 feet in length and not engaged in towing; 
or
    (ii) A vessel authorized by the Captain of the Port Marine Safety 
Unit Port Arthur (COTP) or a designated representative
    (2) Persons and vessels desiring to enter the safety zone must 
request permission from the COTP or a designated representative. They 
may be contacted through Vessel Traffic Service (VTS) on channels 65A 
or 13 VHF-FM, or by telephone at (409) 719-5070.
    (3) Permission to transit through the bridge will be based on 
weather, tide and current conditions, vessel size, horsepower, and 
availability of assist vessels. All persons and vessels permitted to 
enter this temporary safety zone shall comply with the lawful orders or 
directions given to them by COTP or a designated representative.
    (4) Intentional or unintentional contact with any part of the 
bridge or associated structure, including fendering systems, support 
columns, spans or any other portion of the bridge, is strictly 
prohibited. Report any contact with the bridge or associated structures 
immediately to VTS Port Arthur on channels 65A, 13 or 16 VHF-FM or by 
telephone at (409) 719-5070.
    (d) Informational broadcasts. The Coast Guard will inform the 
public through public of the effective period of this safety zone 
through VTS Advisories, Broadcast Notices to Mariners (BNMs), Local 
Notice to Mariners (LNMs), and/or Marine Safety Information Bulletins 
(MSIBs) as appropriate.

    Dated: July 22, 2019.
Jacqueline Twomey,
Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port 
Arthur.
[FR Doc. 2019-18359 Filed 8-26-19; 8:45 am]
 BILLING CODE 9110-04-P