Safety Zones; Sector Upper Mississippi River Annual and Recurring Safety Zones Update

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to amend and update its tables of annual and recurring safety zones that take place within the Eighth Coast Guard District listed in our regulations. We invite your comments on this proposed rulemaking.

DATES:

Comments and related material must be received by the Coast Guard on or before July 1, 2019.

ADDRESSES:

You may submit comments identified by docket number USCG-2018-1009 using the Federal eRulemaking Portal at https://www.regulations.gov . See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION: section for further instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this proposed rulemaking, call or email Lieutenant Commander Christian Barger, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2560, email Christian.J.Barger@uscg.mil.

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, Purpose, and Legal Basis

The Captain of the Port Sector Upper Mississippi River (COTP) proposes to amend and update section 165.801 Table 2 of Title 33 of the Code of Federal Regulations (CFR) (33 CFR 165.801 Table 2) titled Sector Upper Mississippi River Annual and Recurring Safety Zones to accurately reflect safety zones occurring on a regular basis in the Sector Upper Mississippi River Captain of the Port Zone. We propose to remove four safety zones that are no longer necessary. In addition, the COTP proposes to amend Table 2 by updating details of all safety zones. The updated details of all safety zones include correcting errors in the names of twelve safety zones, re-defining the date of safety zones for fireworks displays for 4th of July celebrations to permit greater flexibility in planning of these events, correcting errors in the nearest city for nine safety zones, and removing sponsor names from all safety zones. Finally, the COTP proposes to amend Table 2 by rearranging the Table to display safety zones first by the body of water on which they take place (alphabetically), second by the date(s) on which those safety zones will be enforced, and third by mile marker (descending).

This proposed rule would ensure that the public is informed of annual and recurring safety zones taking place within the Sector Upper Mississippi River Captain of the Port Zone, that the table of annual and recurring safety zones is easy to read, and would considerably reduce administrative burden to both the Coast Guard and those requesting the enforcement of recurring safety zones. The Coast Guard is proposing this rulemaking under the authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard encourages the public to participate in this proposed rulemaking through the comment process so that any necessary changes not already contained in this proposed rule, can be identified and implemented in a timely and efficient manner.

III. Discussion of Proposed Rule

Section 165.801 of Title 33 CFR contains regulations related to annual and recurring safety zones. From time to time, this section requires amendment to properly reflect safety zones recurring within the Eighth Coast Guard District. This proposed rule would remove four safety zones that are no longer necessary, update details for all safety zones to include the correction of twelve names, re-defining the date of safety zones for fireworks displays for 4th of July celebrations to permit greater flexibility in planning of these events, correcting errors in the nearest city for nine safety zones, removing sponsor names from all safety zones, and rearrange the Table to display safety zones first by the body of water on which they take place (alphabetically), second by the date(s) on which those safety zones will be enforced, and third by mile marker (descending).The proposed changes are as follows.

This proposed rule would remove the following four safety zones from Table 2 of 33 CFR 165.801:

This proposed rule would update the details of all safety zones in Table 2 of 33 CFR 165.801 and reorganize the table as follows:

The effect of this proposed rule would be to restrict general navigation for a duration of time during the listed dates in accordance with the regulations in 33 CFR 165.801. The proposed recurring safety zones are necessary to provide for the safety of life on navigable waters during events which pose a risk to persons and vessels operating on the waterway.

IV. Regulatory Analyses

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM 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 location, size, and duration of the safety zones that will be in place during the listed events. The enforcement of these safety zones would be limited in size and duration necessary to ensure the safety of life during the listed events. Additionally, this proposed rule would only modify the existing tables of events by removing four safety zones that no longer take place, updating the details of safety zones to ensure they are current and accurate, and modifying the safety zone table for easier reading.

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 proposed rule would 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 zones may be small entities, for the reasons stated in section IV.A above, this proposed 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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves the amendment of existing safety zone tables found in 33 CFR 165.801 to accurately reflect recurring safety zones occurring on a regular basis within the Eighth Coast Guard District. Normally such actions are categorically excluded from further review under paragraph L60(b) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01, for which a Record of Environmental Consideration is not required. However, prior to the activation of any listed safety zone, a complete environmental review will be conducted in accordance with DHS Instruction Manual 023-01-001-01, Rev.01 and Commandant Instruction M16475.1D. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov . If your material cannot be submitted using http://www.regulations.gov,, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit https://www.regulations.gov/privacyNotice .

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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 proposes to amend 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, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1

2. Revise Table 2 to § 165.801 as follows: