[Federal Register Volume 84, Number 120 (Friday, June 21, 2019)]
[Rules and Regulations]
[Pages 29067-29069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13179]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0123]
RIN 1625-AA00


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.

[[Page 29068]]


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 270-442-1621 ext. 2120, email STL-SMB-MSUPaducah-WWM@uscg.mil.

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 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

[[Page 29069]]

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

0
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.


0
2. Add Sec.  165.T846 to read as follows:


Sec.  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 
Sec.  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.
[FR Doc. 2019-13179 Filed 6-20-19; 8:45 am]
 BILLING CODE 9110-04-P


