2019-05300. Safety Zone; Missouri River, Mile Markers 450-625, St. Joseph, MO to Omaha, NE  

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    AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone on the navigable waters of the Missouri River from mile marker (MM) 450 to MM 625 between St. Joseph, MO and Omaha, NE. This action is necessary to provide for the safety of persons, vessels, and the marine environment on these navigable waters as a result of flooding on the river that has resulted in some reported levee failures and is threatening to overtop additional levees. 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 March 20, 2019 until April 1, 2019, or until cancelled by the Captain of the Port Sector Upper Mississippi River, whichever occurs first. For the purposes of enforcement, actual notice will be provided from March 15, 2019 until March 20, 2019.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2019-0177 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    Start Further Info

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Commander Christian Barger, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2560, email Christian.J.Barger@uscg.mil.

    End Further Info End Preamble Start Supplemental Information

    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

    § Section

    USACE United States Army Corps of Engineers

    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 it is impracticable. It is impracticable because we must establish this safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone and compromise public safety.

    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 this rule would be contrary to public interest because immediate action is necessary to respond to the potential safety hazards associated with floodwaters threatening to overtop levees along the river.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that potential hazards associated with flood waters threaten to overtop levees along the river. The United States Army Corps of Engineers (USACE) Kansas City District has expressed concern that vessel traffic in the affected area could cause damage to the levees resulting in overtopping or failure. This rule is necessary to ensure the safety of persons, vessels, and the marine environment on these navigable waters due to the flood impacts to USACE levees.

    IV. Discussion of the Rule

    On March 14, 2019, the USACE Kansas City District contacted the Coast Guard to report flood waters approaching the tops of levees along the Missouri River between Mile Marker (MM) 450 and MM 550 and requested a river closure to ensure the safety of persons, vessels, and the marine environment that would result if floodwaters overtop the levees. On March 15, 2019, the Plattsmouth Fire Department reported a levee break along the river and requested a river closure to MM 625 at Omaha, NE. This rule establishes a temporary safety zone from March 15, 2019 until April 1, 2019, or until cancelled by the Captain of the Port Sector Upper Mississippi River (COTP). The safety zone will be enforced on all navigable waters of the Missouri River from MM 450 to MM 625, unless reduced in scope by the COTP as flood conditions warrant.

    No vessel or person will be permitted to enter the safety zone without obtaining permission from 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. 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. 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 of the safety zone as flood conditions improve, through Start Printed Page 10263Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), 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. 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 emergency nature of the action and after consultation with representatives of the shipping industries that use this reach of river indicate that the many shipping companies have already made arrangements to avoid this area. Moreover, the Coast Guard will issue a BNM via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone on a case-by-case basis.

    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 temporary 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), 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 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 above.

    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 Commandant Instruction M16475.1D, 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 temporary safety zone prohibiting entry on a one hundred mile stretch of the Missouri River that is experiencing significant flooding that is impacting levees. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be made 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.

    Start List of Subjects

    List of Subjects in 33 CFR Part 165

    • Harbors
    • Marine safety
    • Navigation (water)
    • Reporting and recordkeeping requirements
    • Security measures
    • Waterways
    End List of Subjects

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

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    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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    1. The authority citation for part 165 continues to read as follows:

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    Authority: 46 U.S.C. 70034; 46 U.S.C. 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and Start Printed Page 10264160.5; Department of Homeland Security Delegation No. 0170.1.

    End Authority Start Amendment Part

    2. Add § 165.T08-0177 to read as follows:

    End Amendment Part
    Safety Zone; Missouri River, Mile Markers 450-625, St. Joseph, MO to Omaha, NE.

    (a) Location. The following area is a safety zone: All waters of the Missouri River from Mile Marker (MM) 450 to MM 625 This section will be enforced on all navigable waters of the Missouri River from MM 450 to MM 625, unless reduced in scope by the COTP as flood conditions warrant.

    (b) Effective period. This section is effective without actual notice from March 20, 2019 until April 1, 2019, or until cancelled by the Captain of the Port Sector Upper Mississippi River (COTP), whichever occurs first. For the purposes of enforcement, actual notice will be provided from March 15, 2019 until March 20, 2019.

    (c) Regulations. (1) In accordance with the general safety zone regulations in § 165.23, entry of persons or vessels into this 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 of the safety zone as flood conditions improve, through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    Start Signature

    Dated: March 15, 2019.

    R.M. Scott,

    Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper Mississippi River.

    End Signature End Supplemental Information

    [FR Doc. 2019-05300 Filed 3-19-19; 8:45 am]

    BILLING CODE 9110-04-P

Document Information

Effective Date:
3/20/2019
Published:
03/20/2019
Department:
Coast Guard
Entry Type:
Rule
Action:
Temporary final rule.
Document Number:
2019-05300
Dates:
This rule is effective without actual notice from March 20, 2019 until April 1, 2019, or until cancelled by the Captain of the Port Sector Upper Mississippi River, whichever occurs first. For the purposes of enforcement, actual notice will be provided from March 15, 2019 until March 20, 2019.
Pages:
10262-10264 (3 pages)
Docket Numbers:
Docket Number USCG-2019-0177
RINs:
1625-AA00: Safety Zone Regulations
RIN Links:
https://www.federalregister.gov/regulations/1625-AA00/safety-zone-regulations
Topics:
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways
PDF File:
2019-05300.pdf
CFR: (1)
33 CFR 165.T08-0177