Safety Zone; Missouri River, Mile Markers 450-625, St. Joseph, MO to Omaha, NE

Citation84 FR 10262
Record Number2019-05300
Published date20 March 2019
SectionRules and Regulations
CourtCoast Guard,Homeland Security Department
Federal Register, Volume 84 Issue 54 (Wednesday, March 20, 2019)
[Federal Register Volume 84, Number 54 (Wednesday, March 20, 2019)]
                [Rules and Regulations]
                [Pages 10262-10264]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-05300]
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                DEPARTMENT OF HOMELAND SECURITY
                Coast Guard
                33 CFR Part 165
                [Docket Number USCG-2019-0177]
                RIN 1625-AA00
                Safety Zone; Missouri River, Mile Markers 450-625, St. Joseph, MO
                to Omaha, NE
                AGENCY: Coast Guard, DHS.
                ACTION: Temporary final rule.
                -----------------------------------------------------------------------
                SUMMARY: The Coast Guard is establishing a temporary safety zone on the
                navigable waters of the Missouri River from mile marker (MM) 450 to MM
                625 between St. Joseph, MO and Omaha, NE. This action is necessary to
                provide for the safety of persons, vessels, and the marine environment
                on these navigable waters as a result of flooding on the river that has
                resulted in some reported levee failures and is threatening to overtop
                additional levees. Entry of vessels or persons into this zone is
                prohibited unless specifically authorized by the Captain of the Port
                Sector Upper Mississippi River (COTP) or a designated representative.
                DATES: This rule is effective without actual notice from March 20, 2019
                until April 1, 2019, or until cancelled by the Captain of the Port
                Sector Upper Mississippi River, whichever occurs first. For the
                purposes of enforcement, actual notice will be provided from March 15,
                2019 until March 20, 2019.
                ADDRESSES: To view documents mentioned in this preamble as being
                available in the docket, go to https://www.regulations.gov, type USCG-
                2019-0177 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, Sector Upper
                Mississippi River Waterways Management Division, U.S. Coast Guard;
                telephone 314-269-2560, email [email protected].
                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
                Sec. Section
                USACE United States Army Corps of Engineers
                U.S.C. United States Code
                II. Background Information and Regulatory History
                 The Coast Guard is issuing this temporary 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 because it is impracticable. It is
                impracticable because we must establish this safety zone immediately
                and lack sufficient time to provide a reasonable comment period and
                then consider those comments before issuing this rule. The NPRM process
                would delay the establishment of the safety zone and compromise public
                safety.
                 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 this rule would be
                contrary to public interest because immediate action is necessary to
                respond to the potential safety hazards associated with floodwaters
                threatening to overtop levees along the river.
                III. Legal Authority and Need for Rule
                 The Coast Guard is issuing this rule under authority in 46 U.S.C.
                70034. The COTP has determined that potential hazards associated with
                flood waters threaten to overtop levees along the river. The United
                States Army Corps of Engineers (USACE) Kansas City District has
                expressed concern that vessel traffic in the affected area could cause
                damage to the levees resulting in overtopping or failure. This rule is
                necessary to ensure the safety of persons, vessels, and the marine
                environment on these navigable waters due to the flood impacts to USACE
                levees.
                IV. Discussion of the Rule
                 On March 14, 2019, the USACE Kansas City District contacted the
                Coast Guard to report flood waters approaching the tops of levees along
                the Missouri River between Mile Marker (MM) 450 and MM 550 and
                requested a river closure to ensure the safety of persons, vessels, and
                the marine environment that would result if floodwaters overtop the
                levees. On March 15, 2019, the Plattsmouth Fire Department reported a
                levee break along the river and requested a river closure to MM 625 at
                Omaha, NE. This rule establishes a temporary safety zone from March 15,
                2019 until April 1, 2019, or until cancelled by the Captain of the Port
                Sector Upper Mississippi River (COTP). The safety zone will be enforced
                on all navigable waters of the Missouri River from MM 450 to MM 625,
                unless reduced in scope by the COTP as flood conditions warrant.
                 No vessel or person will be permitted to enter the safety zone
                without obtaining permission from the 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. To seek
                permission to enter, contact the COTP or a designated representative
                via VHF-FM channel 16, or through USCG Sector Upper Mississippi River
                at 314-269-2332. Persons and vessels permitted to enter the safety zone
                must comply with all lawful orders or directions issued by the COTP or
                designated representative. The COTP or a designated representative will
                inform the public of the effective period for the safety zone as well
                as any changes in the dates and times of enforcement, as well as
                reductions in size of the safety zone as flood conditions improve,
                through
                [[Page 10263]]
                Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs),
                and/or Marine Safety Information Bulletins (MSIBs), as appropriate.
                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 emergency
                nature of the action and after consultation with representatives of the
                shipping industries that use this reach of river indicate that the many
                shipping companies have already made arrangements to avoid this area.
                Moreover, the Coast Guard will issue a BNM via VHF-FM marine channel 16
                about the zone, and the rule allows vessels to seek permission to enter
                the zone on a case-by-case basis.
                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
                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 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 temporary safety zone prohibiting entry on a one hundred mile stretch
                of the Missouri River that is experiencing significant flooding that is
                impacting levees. It is categorically excluded from further review
                under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual
                023-01-001-01, Rev. 01. A Record of Environmental Consideration
                supporting this determination will be made 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; 46 U.S.C. 70051; 33 CFR 1.05-1,
                6.04-1, 6.04-6, and
                [[Page 10264]]
                160.5; Department of Homeland Security Delegation No. 0170.1.
                0
                2. Add Sec. 165.T08-0177 to read as follows:
                Sec. 165.T08-0177 Safety Zone; Missouri River, Mile Markers 450-625,
                St. Joseph, MO to Omaha, NE.
                 (a) Location. The following area is a safety zone: All waters of
                the Missouri River from Mile Marker (MM) 450 to MM 625 This section
                will be enforced on all navigable waters of the Missouri River from MM
                450 to MM 625, unless reduced in scope by the COTP as flood conditions
                warrant.
                 (b) Effective period. This section is effective without actual
                notice from March 20, 2019 until April 1, 2019, or until cancelled by
                the Captain of the Port Sector Upper Mississippi River (COTP),
                whichever occurs first. For the purposes of enforcement, actual notice
                will be provided from March 15, 2019 until March 20, 2019.
                 (c) Regulations. (1) In accordance with the general safety zone
                regulations in Sec. 165.23, entry of persons or vessels into this
                safety zone described in paragraph (a) of this section is prohibited
                unless authorized by the 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) To seek permission to enter, contact the COTP or a designated
                representative via VHF-FM channel 16, or through USCG Sector Upper
                Mississippi River at 314-269-2332. Persons and vessels permitted to
                enter the safety zone must comply with all lawful orders or directions
                issued by the COTP or designated representative.
                 (d) Informational broadcasts. The COTP or a designated
                representative will inform the public of the effective period for the
                safety zone as well as any changes in the dates and times of
                enforcement, as well as reductions in size of the safety zone as flood
                conditions improve, through Local Notice to Mariners (LNMs), Broadcast
                Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins
                (MSIBs) as appropriate.
                 Dated: March 15, 2019.
                R.M. Scott,
                Commander, U.S. Coast Guard, Acting Captain of the Port Sector Upper
                Mississippi River.
                [FR Doc. 2019-05300 Filed 3-19-19; 8:45 am]
                 BILLING CODE 9110-04-P
                

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