2019-13179. Safety Zone; Lower Mississippi River, Ohio River, and Upper Mississippi River, Bird's Point-New Madrid Floodway

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for all navigable waters of the Lower Mississippi River from mile marker (MM) 953.8 to MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5. This action is necessary to protect persons, property, and infrastructure from potential damage and the safety hazards associated with the demolition of federal levees on the Lower Mississippi River and utilization of the Bird's Point-New Madrid Floodway. This rule prohibits the entry of vessels or persons into this temporary safety zone unless specifically authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.

DATES:

This rule is effective July 22, 2019.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2019-0123 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 about this proposed rulemaking, call or email MST2 Dylan Caikowski, MSU Paducah, U.S. Coast Guard; telephone [phone] ext. 2120, email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

The purpose of this rule is to ensure the safety of vessels on the navigable waters of the Lower Mississippi River, Upper Mississippi River, and Ohio River during high water event. The United States Army Corps of Engineers informed us that it might deem it necessary to demolish certain federal levees on the Lower Mississippi River and utilize the Bird's Point-New Madrid Floodway, to maintain the integrity of the Lower Mississippi River, Upper Mississippi River, Ohio River, and all associated tributaries. During this time, a temporary safety zone on the Lower Mississippi River, Upper Mississippi River, and Ohio River would be necessary to protect persons, property, and infrastructure from potential damage and safety hazards associated with the demolition of federal levees on the Lower Mississippi River and utilization of the Bird's Point-New Madrid Floodway. In response, on March 25, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Lower Mississippi River, Ohio River, and Upper Mississippi River, Bird's Point-New Madrid Floodway (84 FR 11035). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this potential demolition of the federal levees on the Lower Mississippi River and utilization of the Bird's Point-New Madrid Floodway. During the comment period that ended April 24, 2019, we received one comment.

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 Ohio Valley (COTP) has determined that potential hazards associated with the demolition of the federal levees on the Lower Mississippi River and re-stabilization of the waterway is a safety concern for anyone in the vicinity of the Lower Mississippi River from MM 953.8 to MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received one comment on our NPRM published March 25, 2019. The comment affirmed the need for a safety zone during the demolition of the federal levees to protect people and vessels. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a temporary safety zone on all navigable waters of the Lower Mississippi River from MM 953.8 MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5, in the event of the demolition of the federal levees on the Lower Mississippi River and utilization of the Bird's Point-New Madrid Floodway. 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 Local Notices to Mariners (LNMs), and/or actual notice.

No vessels or persons are permitted to enter the proposed safety zone without obtaining permission from the COTP or a designated representative.

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 size, location, duration, and time-of-day of the temporary safety zone. The safety zone only impacts a relatively small portion of the waterway and will only be in effect during the demolition process and approximately 36 hours after the demolition to allow for stabilization of the waterway. After approximately 36 hours, vessels would be allowed to transit. Additionally, the safety zone will be limited to the high water event if the U.S. Army Corps of Engineers deems it necessary to demolish the federal levees on the Lower Mississippi River and utilize the Bird's Point-New Madrid Floodway.

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 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 Order13132.

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 on all waters of the Lower Mississippi River from MM 953.8 to MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5, during demolition of the federal levees on the Lower Mississippi River and utilization of the Bird's Point-New Madrid Floodway. It 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 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 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and record keeping 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

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.

2. Add § 165.T846 to read as follows:

§ 165.T846

Safety Zone; Lower Mississippi River, Ohio River, and Upper Mississippi River, Bird's Point-New Madrid Floodway.

(a) Location. The temporary safety zone will encompass all navigable waters of the Lower Mississippi River from mile marker (MM) 953.8 to MM 887.0, the Upper Mississippi River from MM 0.0 to MM 3.0, and the Ohio River from MM 981.5 to MM 978.5.

(b) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this temporary safety zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.

(2) To seek permission to enter, contact the COTP or a designated representative by radio VHF-FM Channel 16 or via phone at 502-779-5422. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or a designated representative.

(c) Enforcement period. 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 Local Notices to Mariners (LNMs), and/or actual notice.

Dated: June 17, 2019.

A.M. Beach,

Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.