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

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is amending and updating its table of annual and recurring safety zones that take place within the Eighth Coast Guard District listed in section 165.801 Table 2 of the Title 33 of the Code of Federal Regulations (CFR).

DATES:

This rule is effective October 15, 2019.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2018-1009 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 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 Information and Regulatory History

In Fall 2018, the Captain of the Port Sector Upper Mississippi River (COTP) began the annual review of section 165.801 Table 2 of Title 33 of the Code of Federal Regulations (CFR) (33 CFR 165.801 Table 2) to ensure it accurately reflected safety zones occurring on a regular basis in the Sector Upper Mississippi River Captain of the Port Zone. On May 31, 2019 the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Upper Mississippi River Annual and Recurring Safety Zones Update [84 FR 25212]. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to the annual update. During the comment period that ended July 1, 2019, we received no comments.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) is amending and updating section 165.801 Table 2 of Title 33 of the Code of Federal Regulations (CFR) (33 CFR 165.801 Table 2) to accurately reflect safety zones occurring on a regular basis in the Sector Upper Mississippi River Captain of the Port Zone. This rule ensures 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 minimizes administrative burden to both the Coast Guard and those requesting the enforcement of recurring safety zones. The 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. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published on May 31, 2019. We are adding the Kansas City Airshow into this rule because the sponsor said the 2019 Airshow was successful and it will be taking place again in 2020. Additionally, although we proposed to remove them in the NPRM, we are retaining the safety zones for the City of Champlin/Father Hennepin Fireworks Display and the McGregor/Marquette Chamber Commerce/Independence Day Celebration. We now believe that both of these events will continue to re-occur.

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 rule updates Table 2 of this section by removing two safety zones, adding one safety zone, updating 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 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). The changes are as follows.

This rule is removes the following two safety zones from Table 2 of 33 CFR 165.801:

Both of these events are expected to continue. However, the Coast Guard is changing how the events are regulated and, correspondingly, will be relocating the regulations for these events to other portions of the CFR in a separate rule or rules.

This rule adds one safety zone (line 15 below), updates the details of all safety zones in Table 2 of 33 CFR 165.801, and reorganizes the table as follows:

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 location, size, and duration of the safety zones that will be in place during the listed events. The enforcement of these safety zones is limited in size and duration to only that necessary to ensure the safety of life during the listed events. Additionally, this rule only modifies the existing Table of safety zones by removing two that no longer take place, adding one, updating the details of safety zones to ensure they are current and accurate, and modifying the 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 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 safety zones 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 call or email 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 call or email 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 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 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 rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email 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

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: