[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Rules and Regulations]
[Pages 16211-16213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07770]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0222]
RIN 1625-AA00


Safety Zone; Mississippi Sound, Biloxi, MS

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in 
Mississippi Sound in Biloxi, MS. The safety zone is needed to protect 
persons, vessels, and the marine environment in the waters adjacent to 
Biloxi Beach during an airshow in Biloxi, MS. This rulemaking restricts 
transit into, through, and within the regulated area unless 
specifically authorized by the Captain of the Port Sector Mobile (COTP) 
or a designated representative.

DATES: This rule is effective from 8 a.m. on May 1, 2019 through 5 p.m. 
on May 5, 2019.

ADDRESSES: You may find supplemental documents identified in the 
preamble of this rule by searching the docket number USCG-2019-0222 on 
the Federal eRulemaking Portal at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
rulemaking, call or email LT Kyle D. Berry, Sector Mobile, Waterways 
Management Division, U.S. Coast Guard; telephone 251-441-5940, email 
[email protected].

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

    On January 17, 2019, the marine event sponsor for the Thunder over 
the Sound Air Show submitted an application for a marine event permit. 
The Captain of the Port Sector Mobile (COTP) has determined a safety 
zone is needed to protect the persons, vessels, and marine environment 
in the waters adjacent to Biloxi during the Thunder over the Sound 
marine event.
    The Coast Guard is issuing this safety zone 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 safety zone 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 an NPRM with respect to this 
rule because it is impracticable. It is impractical to publish an NPRM 
because this safety zone must be established by May 1, 2019, and we 
lack sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule.
    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 would 
be contrary to the public interest because immediate action is needed 
to respond to potential safety hazards associated with the Thunder over 
the Sound air show.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70041. The Captain of the Port Sector Mobile has determined that 
potentials hazards associated with the Thunder over the Sound air show 
will be a safety concern for persons, vessels, and the marine 
environment within the area adjacent to Biloxi Beach in the Mississippi 
Sound. The purpose of this rule is to ensure safety of the public, 
participants, spectators, and the marine environment in the regulated 
area during the event.

IV. Discussion of the Rule

    This rule establishes a safety zone from May 1st, 2019 until May 
5th, 2019, which will be enforced from 8 a.m. through 5 p.m. daily. The 
safety zone is intended to protect the persons, vessels, and marine 
environment from hazards associated with the Thunder over the Sound Air 
Show.
    The safety zone takes place over the Mississippi Sound in Biloxi, 
MS, encompassing the square show box between positions: Northwest 
Corner--30[deg]23'33.16'' N, 88[deg]55'54.89'' W; Northeast Corner--
30[deg]23'33.55'' N,

[[Page 16212]]

88[deg]53'37.88'' W; Southwest Corner--30[deg]23'30.47'' N, 
88[deg]55'54.75'' W; Southeast Corner--30[deg]23'30.88'' N, 
88[deg]53'37.77'' W. No vessel or person will be permitted to enter, 
transit within or through, or exit the safety zone without obtaining 
permission from the COTP or a designated representative. A designated 
representative will be a Patrol Commander (PATCOM). Spectator vessels 
desiring to enter, transit through or within, or exit the safety zone 
may request permission to enter the regulated from a PATCOM. When 
permitted to transit the area vessels must follow restrictions within 
the safety zone as directed by the Coast Guard, and must operate at a 
minimum safe navigation speed in a manner which will not endanger 
participants in the safety zone or any other vessels.

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 safety zone 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 determination is based on the size, location, and 
duration of the safety zone. This safety zone impacts a small area of 
the Mississippi Sound adjacent to Biloxi Beach for nine hours each day 
over five days. Vessel traffic will be informed about the safety zone 
through local notices to mariners. Moreover, the Coast Guard will issue 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zone and the rule allows vessels to seek permission to transit the 
zone.

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 
safety zone may be small entities, for the reasons stated in section 
IV.A above, this rule would not have a significant economic impact on 
any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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 safety zone encompassing the square show box between the following 
positions adjacent to Biloxi Beach: Northwest Corner--30[deg]23'33.16'' 
N, 88[deg]55'54.89'' W; Northeast Corner--30[deg]23'33.55'' N, 
88[deg]53'37.88'' W; Southwest Corner--30[deg]23'30.47'' N, 
88[deg]55'54.75'' W; Southeast Corner--30[deg]23'30.88'' N, 
88[deg]53'37.77'' W. It is categorically excluded from further review 
under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) 
supporting this determination would be

[[Page 16213]]

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

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.T08-0222 to read as follows:


Sec.  165.T08-0222  Safety Zone; Mississippi Sound, Biloxi, MS.

    (a) Location. The following area is a safety zone: Navigable waters 
in the Mississippi Sound encompassing the square show box adjacent to 
Biloxi Beach bound by the following positions: Northwest Corner--
30[deg]23'33.16'' N, 88[deg]55'54.89'' W; Northeast Corner--
30[deg]23'33.55'' N, 88[deg]53'37.88'' W; Southwest Corner--
30[deg]23'30.47'' N, 88[deg]55'54.75'' W; Southeast Corner--
30[deg]23'30.88'' N, 88[deg]53'37.77'' W.
    (b) Effective period. This section is effective from 8 a.m. on May 
1, 2019 until 5 p.m. on May 5, 2019.
    (c) Enforcement period. This section will be enforced from 8 a.m. 
until 5 p.m. each day of the effective period.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting through, or exiting from this area 
is prohibited unless authorized by the Captain of the Port Sector 
Mobile (COTP) or a designated representative. A designated 
representative may be a Patrol Commander (PATCOM). The PATCOM will be 
aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM 
may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign 
``PATCOM''.
    (2) All persons and vessels not registered with the event sponsor 
as participants or official patrol vessels are considered spectators. 
The ``official patrol vessels'' consist of any Coast Guard, state, or 
local law enforcement and sponsor provided vessels assigned or approved 
by the COTP to patrol the regulated area.
    (3) Spectator vessels desiring to transit the regulated area may do 
so only with prior approval of the PATCOM and when so directed by that 
officer will be operated at a minimum safe navigation speed in a manner 
that will not endanger participants in the zone or any other vessels.
    (4) No spectator vessel shall anchor, block, loiter, or impede the 
through transit of participants or official patrol vessels in the 
regulated area during the effective dates and times, unless cleared for 
entry by or through an official patrol vessel.
    (5) Any spectator vessel may anchor outside the regulated area, but 
may not anchor in, block, or loiter in a navigable channel. Spectator 
vessels may be moored to a waterfront facility within the regulated 
area in such a way that they shall not interfere with the progress of 
the event. Such mooring must be complete at least 30 minutes prior to 
establishment of the regulated area and remain moored through duration 
of the event.
    (6) The Patrol Commander may forbid and control the movement of all 
vessels in the regulated area. When hailed or signaled by an official 
patrol vessel, a vessel shall come to an immediate stop and comply with 
the directions given. Failure to do so may result in expulsion from the 
area, citation for failure to comply, or both.
    (7) The Patrol Commander may terminate the event or the operation 
of any vessel at any time it is deemed necessary for the protection of 
life or property.
    (8) The Patrol Commander will terminate enforcement of the safety 
zone at the conclusion of the event.
    (9) Entry into this zone is prohibited unless authorized by the 
COTP or a designated representative.
    (10) Persons or vessels seeking to enter into or transit through 
the zone must request permission from the COTP or a designated 
representative. They may be contacted on VHF-FM channels 16 or by 
telephone at 251-441-5976.
    (11) If permission is granted, all persons and vessels must comply 
with the instructions of the COTP or designated representative.
    (e) Informational broadcasts. The COTP or a designated 
representative will inform the public through Broadcast Notices to 
Mariners of the enforcement period for the temporary safety zone as 
well as any changes in the planned schedule.

    Dated: April 12, 2019.
M.R. McLellan,
Captain, U.S. Coast Guard, Captain of the Port Sector Mobile.
[FR Doc. 2019-07770 Filed 4-17-19; 8:45 am]
 BILLING CODE 9110-04-P


