
[Federal Register: August 14, 2009 (Volume 74, Number 156)]
[Rules and Regulations]               
[Page 41043-41045]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au09-6]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0594]
RIN 1625-AA00

 
Safety Zone; Missouri River, Mile 366.3 to 369.8

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all waters of the Missouri River, Mile 366.3 to 369.8, extending the 
entire width of the river. This safety zone is needed to protect 
persons and vessels from safety hazards associated with an aerial 
display occurring over a portion of the Missouri River. Entry into this 
zone is prohibited unless specifically authorized by the Captain of the 
Port Upper Mississippi River or a designated representative.

DATES: This rule is effective from 12 p.m. until 5 p.m. CDT on August 
21, 2009, and from 11:30 a.m. until 5 p.m. CDT, each day, on August 22 
and 23, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0594 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0594 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Commander (LCDR) Matthew 
Barker, Sector Upper Mississippi River Response Department at telephone 
(314) 269-2540, e-mail Matthew.P.Barker@uscg.mil. If you have questions 
on viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final 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. Publishing an NPRM would be contrary to the 
public interest because immediate action is needed to protect vessels 
and mariners from the safety hazards associated with a fireworks 
display.

[[Page 41044]]

    For the same reason, the Coast Guard also finds under 5 U.S.C. 
553(d)(3) that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register.

Background and Purpose

    On August 21, 22, and 23, 2009, the U.S. Air Force Thunderbirds 
will be conducting a fixed wing air show between mile 366.3 and 369.8 
on the Missouri River. This event presents safety hazards to the 
navigation of vessels between mile 366.3 and mile 369.8, extending the 
entire width of the river. The Captain of the Port Upper Mississippi 
River will inform the public of all safety zone changes through 
broadcast notice to mariners.

Discussion of Rule

    The Coast Guard is establishing a safety zone for all waters of the 
Missouri River, Mile 366.3 to 369.8, extending the entire width of the 
river. Entry into this zone is prohibited to all vessels and persons 
except participants and those persons and vessels specifically 
authorized by the Captain of the Port Upper Mississippi River. This 
rule is effective from 12 p.m. until 5 p.m. CDT on August 21, 2009 and 
from 11:30 a.m. until 5 p.m. CDT on August 22 & 23, 2009. The Captain 
of the Port Upper Mississippi River will inform the public through 
broadcast notice to mariners of all safety zone changes and enforcement 
periods.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. The economic impact of this temporary 
rule is expected to be minimal because of the small size and short 
duration of the safety zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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. This rule will affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit the Missouri River, Mile 366.3 to 369.8, from 12 p.m. until 5 
p.m. CDT on August 21, 2009 and from 11:30 a.m. until 5 p.m. CDT on 
August 22 & 23, 2009. This safety zone will not have a significant 
economic impact on a substantial number of small entities because it 
will cover a relatively small area and only be in effect for a short 
period of time.
    If you are a small business entity and are significantly affected 
by this regulation, please contact LCDR Matthew Barker, Sector Upper 
Mississippi River at (314) 269-2540.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so they could better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that Order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of

[[Page 41045]]

energy. The Administrator of the Office of Information and Regulatory 
Affairs has not designated it as a significant energy action. 
Therefore, it does not require a Statement of Energy Effects under 
Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.lD, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is 
one of a category of actions which do not individually or cumulatively 
have a significant effect on the human environment. This rule is 
categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction because the rule creates a safety zone.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.


0
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:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T09-0594 to read as follows:


Sec.  165.T09-0594  Safety Zone; Missouri River, Mile 366.3 to 369.8.

    (a) Location. The following area is a safety zone: all waters of 
the Missouri River, Mile 366.3 to 369.8 extending the entire width of 
the waterway.
    (b) Effective date. This rule is effective from 12 p.m. until 5 
p.m. CDT on August 21, 2009 and from 11:30 a.m. until 5 p.m. CDT, each 
day, on August 22 and 23, 2009.
    (c) Periods of Enforcement. The Captain of the Port Upper 
Mississippi River will inform the public through broadcast notice to 
mariners of all safety zone changes and enforcement periods.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port Upper Mississippi River or a 
designated representative.
    (2) Persons or vessels requiring entry into or passage through the 
zone must request permission from the Captain of the Port Upper 
Mississippi River or a designated representative. The Captain of the 
Port Upper Mississippi River representative may be contacted at (314) 
269-2332.
    (3) All persons and vessels must comply with the instructions of 
the Captain of the Port Upper Mississippi River or a designated 
representative. Designated Captain of the Port representatives include 
commissioned, warrant, and petty officers of the U.S. Coast Guard.

    Dated: June 30, 2009.
S.L. Hudson,
Captain, U.S. Coast Guard, Captain of the Port Upper Mississippi River.
[FR Doc. E9-19551 Filed 8-13-09; 8:45 am]

BILLING CODE 4910-15-P
