[Federal Register Volume 88, Number 168 (Thursday, August 31, 2023)]
[Rules and Regulations]
[Pages 60146-60147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18926]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2023-0706]
RIN 1625-AA00


Safety Zone; Upper Mississippi River MM 476, Davenport, IA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters in the Upper Mississippi River at Mile Marker (MM) 
476.6. The safety zone is needed to protect personnel, vessels, and the 
marine environment from all potential hazards associated with the power 
line crossing project. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
Sector Upper Mississippi River (COTP) or a designated representative.

DATES: This rule is effective without actual notice from August 31, 
2023 through September 11, 2023. For the purposes of enforcement, 
actual notice will be used from August 28, 2023 until August 31, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0706 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
call or email MSTC Nathaniel Dibley, Sector Upper Mississippi River 
Waterways Management Division, U.S. Coast Guard; telephone 314-269-
2560, 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 Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because potential hazards created by the 
power line crossing over the Upper Mississippi River and lack 
sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule. It is impracticable to 
publish an NPRM because we must establish this safety zone by August 
28, 2023.
    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 impracticable because immediate action is needed to 
respond to the potential safety hazards associated with the power line 
crossing starting August 28, 2023.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Sector Upper Mississippi (COTP) has 
determined that potential hazards associated with the power line 
crossing starting August 28, 2023, will be a safety concern for anyone 
operating or transiting within the Upper Mississippi River from MM 476-
477. This rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while the 
power line crossing is being conducted.

IV. Discussion of the Rule

    This rule establishes a safety zone during an power line crossing 
project over the Upper Mississippi River on August 28, 2023 through 
September 11, 2023. The safety zone will cover all navigable waters 
from MM 476-477. The duration of the zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters while the power line crosses the Upper Mississippi River. No 
vessel or person will be permitted to enter the safety zone without 
obtaining permission from the COTP or a designated representative via 
VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 
314-269-2332. Persons and vessels permitted to enter the safety zone 
must comply with all lawful orders or directions issued by the COTP or 
designated representative. The COTP or a designated representative will 
inform the public of the effective period for the safety zone as well 
as any changes in the dates and times of enforcement, as well as 
reductions in the size of the safety zone as conditions improve, 
through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners 
(BNMs), and/or Safety Marine Information Broadcast (SMIB), as 
appropriate.

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. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on a safety zone 
located on the Upper Mississippi River MM 476-477 near Davenport, IA. 
The safety zone will be active only while work associated with the 
power line crossing is being conducted, from August 28, 2023, until 
September 11, 2023.

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 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.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121),

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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 call or email 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 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.

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, Rev. 1, associated implementing instructions, 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 encompassing the width of the Upper Mississippi River from 
MM 476 to MM 477. It is categorically excluded from further review 
under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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 
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, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T08-0706 to read as follows:


Sec.  165.T08-0706  Safety Zone; Upper Mississippi River, Mile Markers 
476-477, Davenport, IA.

    (a) Location. The following area is a safety zone: all navigable 
waters within the Upper Mississippi River, Mile Markers (MM) 476-477.
    (b) Enforcement period. This section is subject to enforcement from 
August 28, 2023 through September 11, 2023.
    (c) Regulations. (1) In accordance with the general safety zone 
regulations in Sec.  165.23, entry of persons or vessels into the 
safety zone described in paragraph (a) of this section is prohibited 
unless authorized by the 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) To seek permission to enter, contact the COTP or a designated 
representative via VHF-FM channel 16, or through USCG Sector Upper 
Mississippi River at 314-269-2332. Persons and vessels permitted to 
enter the safety zone must comply with all lawful orders or directions 
issued by the COTP or designated representative.
    (d) Informational broadcasts. The COTP or a designated 
representative will inform the public of the effective period for the 
safety zone as well as any changes in the dates and times of 
enforcement, as well as reductions in size or scope of the safety zone 
as ice or flood conditions improve, through Local Notice to Mariners 
(LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine 
Information Broadcast (SMIB) as appropriate.

    Dated: August 28, 2023.
D.J. Every,
Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper 
Mississippi River.
[FR Doc. 2023-18926 Filed 8-29-23; 11:15 am]
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