2019-14109. Safety Zone; Missouri River, Mile Markers 366.3 to 369.8, Kansas City, MO

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for certain waters of the Missouri River from mile marker (MM) 366.3 to MM 369.8. This action is necessary to provide for the safety of life on these navigable waters near Kansas City, MO, during an air show from July 3 through July 7, 2019. This regulation prohibits persons and vessels from being in the safety zone unless authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.

DATES:

This rule is effective from 11 a.m. on July 3, 2019 through 7 p.m. on July 7, 2019.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2019-0186 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 [phone], email [e-mail].

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

U.S.C. United States Code

II. Background Information and Regulatory History

On March 14, 2019, the KC Air Show Charities notified the Coast Guard that it would be conducting an airshow over the Missouri River near Kansas City, MO on July 3, 2019 from 2 p.m. to 6 p.m., July 4, 2019 from noon to 6 p.m., and from 2 p.m. to 6 p.m. each day from July 5, 2019 through July 7, 2019. In response, on April 15, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Missouri River, Mile Markers 366.3 to 369.8, Kansas City, MO (84 FR 15165). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this airshow. During the comment period that ended on May 15, 2019, we received 17 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 immediate action is needed to respond to the potential safety hazards associated with the air show.

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 Upper Mississippi River (COTP) has determined that potential hazards associated with the air show to take place from July 3, 2019 through July 7, 2019 will be a safety concern for persons and vessels in that area. The purpose of this rule is to ensure safety of life on these navigable waters before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received seventeen comments on our NPRM published on April 15, 2019. Six of those commenters approved the establishment of the safety zone in that area. Three other commenters asked if there was a detour around the zone. Due to the limited width of the Missouri River, it is not possible to navigate a vessel around the safety zone. However, this rule provides plenty of notice for potential travelers to plan ahead for this event. In addition, anyone desiring to enter or pass through this zone, may request permission from the COTP or a designated representative. Such requests will be considered on a case-by-case basis considering all circumstances, and mainly the safety of the requested passage to the vessel and the show participants.

Three commenters asked the Coast Guard to list examples under which a vessel might be allowed to enter the zone and under which it would be excluded. One of these commenters specifically asked how “obviously risky vessels” would be treated if they request permission to enter the zone. And the other one asked under what circumstances “small entities” would be allowed to enter the zone. As stated above and in the NPRM, all requests for entry will be handled on a case-by-case basis. Any vessel that is deemed unsafe by the COTP or a designated representative will not be allowed to enter the zone. As another example, a vessel in the state of emergency, or a medical vessel, may be allowed to enter the zone if it is deemed safe by the COTP or a designated representative.

Two commenters were concerned about the enforcement times. One of them indicated that the enforcement times should be tailored to the exact length of the air show, and the other one indicated that a bigger time cushion would be needed it the show was delayed. The Coast Guard agrees that the time cushion should be provided to account for any delays, including weather, vessel entries, safety reasons, etc. In response to these comments, the Coast Guard has modified this rule's enforcement times to make it more flexible. We have added another day, July 3, 2019, during which the rule will be enforced from 1 p.m. to 7 p.m. We have also extended the beginning and end of the enforcement period as follows. Instead of noon—6 p.m. on July 4, 2019, the rule will be enforced 11 a.m.-7 p.m., and instead of 2 p.m.-6 p.m. on July 5-7, 2019, the rule will be enforced 1 p.m.-7 p.m.

Three commenters were concerned about business vessels that might be unable to transit the area safely or at all. One of these commenters asked the Coast Guard to move the safety zone to land. The other one suggested that the government compensate the vessels unable to transit the area. And the third commenter asked if business vessels would be safe transiting the area. The Coast Guard cannot move the zone because it does not have the authority to establish a marine safety zone on land. The comment about relief for small entities was of general nature and did not provide the Coast Guard with specific information requested in the NPRM. We asked that a business that believes it is qualified as a small entity and that the NPRM had a significant economic impact on it, to provide the Coast Guard with an explanation on why that specific business thought it qualified as such an entity and to what degree the rule would affect it. As to the comment about the safety of business vessels, the Coast Guard stresses that the safety of persons and vessels is the primary reason this safety zone. As stated above, the COTP or a designated representative may allow vessels to enter the zone on a case-by-case basis considering all circumstances, including the safety of a business vessel.

Another three commenters asked how the zone would be enforced and to how to contact the COTP. As stated in the NPRM, the COTP can be contacted at [phone].

For the reasons stated above, the only changes in the regulatory text of this rule from the proposed rule in the NPRM is the modification of the enforcement time to allow for more flexibility. We have added another day, July 3, 2019, during which the rule will be enforced from 1 p.m. through 7 p.m. We have also extended the beginning and end of the enforcement period as follows. Instead of noon through 6 p.m. on July 4, 2019, the rule will be enforced 11 a.m. through 7 p.m., and instead of 2 p.m. through 6 p.m. on July 5-7, 2019, the rule will be enforced 1 p.m. through 7 p.m.

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 duration, location, and size of the safety zone. This zone will be in effect for up to eight hours per day for a total of five days and will affect three and one-half miles of the Missouri River. Additionally, persons and vessels would be allowed to request entry into the zone from the COTP or a designated representative.

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 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.

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.

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 that will last up to eight hours per day for five days along three and one-half miles of the Missouri River for scheduled air show. This action 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 preliminary 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 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

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

Authority: 46 U.S.C. 70034; 46 U.S.C. 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.T08-0186 to read as follows:

§ 165.T08-0186

Safety Zone; Missouri River, Mile Markers 366.3 to 369.8, Kansas City, MO.

(a) Location. The following area is a temporary safety zone: all navigable waters of the Missouri River from Mile Marker (MM) 366.3 to MM 369.8 near Kansas City, MO.

(b) Period of enforcement. This section will be enforced from 1 p.m. through 7 p.m. on July 3, 2019; from 11 a.m. through 7.p.m. on July 4, 2019; and from 1 p.m. through 7 p.m. on each day from July 5, 2019 through July 7, 2019.

(c) Regulations. (1) In accordance with the general regulations in § 165.23, persons and vessels are prohibited from entering the safety zone unless authorized by the Captain of the Port Sector Upper Mississippi River (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) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted by telephone at 314-269-2332.

(3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

(d) Informational broadcasts. 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 Broadcast Notice to Mariners, Local Notices to Mariners, and/or actual notice.

Dated: June 26, 2019.

R. M. Scott,

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