[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Rules and Regulations]
[Pages 27934-27936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13778]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2009-0191]
RIN 1625-AA00


Safety Zone: Ohio River Mile 265.2 to 266.2 and From Kanawha 
River Mile 0.0 to 0.5, Point Pleasant, WV

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the waters of the Ohio River beginning at mile 265.2 and ending at mile 
266.2, and the waters of the Kanawha River beginning at mile 0.0 and 
ending at mile 0.5, extending the entire width of both rivers. This 
safety zone is needed to protect persons and vessels from the potential 
safety hazards associated with the City of Point Pleasant 2009 
Fireworks Display. Entry into this zone is prohibited unless 
specifically authorized by the Captain of the Port Ohio Valley or a 
designated representative.

DATES: This rule is effective from 9:30 p.m. on July 4, 2009 until 
10:30 p.m. on July 4, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0191 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0191 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are also available for inspection or copying 
two locations: the Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Petty Officer Sean T. Lewis, Marine 
Safety Unit Huntington at

[[Page 27935]]

(304) 733-0198, extension 2135 or e-mail at [email protected]. If 
you have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final 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 immediate action is needed to protect 
participant and spectator craft from the hazards associated with the 
fireworks display.
    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. Publishing an NPRM and delaying 
its effective date would be contrary to public interest because 
immediate action is needed to protect vessels and mariners from the 
hazards associated with the fireworks display.

Background and Purpose

    The City of Point Pleasant, WV is sponsoring a fireworks display on 
July 4, 2009. Fireworks will be launched from the left descending bank 
of the Ohio River at mile 265.7. A hazardous situation could exist for 
vessels, mariners and spectators in the vicinity of the fireworks 
display. A safety zone is needed to protect those vessels, mariners and 
spectators from the hazards associated with this fireworks display.

Discussion of Rule

    The Captain of the Port Ohio Valley is establishing a temporary 
safety zone for the waters the Ohio River beginning at mile 265.2 and 
ending at mile 266.2, and the waters of the Kanawha River beginning at 
mile 0.0 and ending at mile 0.5, extending the entire width of both 
rivers. The term ``participating vessel'' includes all vessels 
registered with the fireworks event officials to work in the event. 
With the exception of participating vessels and those mariners 
operating participating vessels, all vessels and persons are prohibited 
from transiting within this safety zone unless authorized by the 
Captain of the Port Ohio Valley or a designated representative. The 
Captain of the Port Ohio Valley may be contacted on VHF-FM Channels 13 
or 16, or by telephone at (800) 253-7465. This rule is effective from 
9:30 p.m. on July 4, 2009 until 10:30 p.m. on July 4, 2009. The Captain 
of the Port Ohio Valley will inform the public through broadcast notice 
to mariners of the enforcement period for the safety zone.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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. This rule will affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit the Ohio River beginning at mile 265.2 and ending at mile 
266.2, and the waters of the Kanawha River beginning at mile 0.0 and 
ending at mile 0.5 from 9:30 p.m. on July 4, 2009 until 10:30 p.m. on 
July 4, 2009. This safety zone will not have a significant economic 
impact on a substantial number of small entities because this rule will 
only be in effect for a short period of time.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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.

Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to

[[Page 27936]]

minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g.), of the Instruction. This rule involves establishment of a 
safety zone to protect persons and vessels from the potential safety 
hazards associated with the City of Point Pleasant 2009 Fireworks 
Display. Under figure 2-1, paragraph (34)(g.), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
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:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. A new temporary Sec.  165.T08-0191 is added to read as follows:


Sec.  165.T08-0191  Safety Zone; Ohio River, Mile 265.2 to 266.2 and 
from Kanawha River, Mile 0.0 to 0.5, Point Pleasant, WV.

    (a) Location. The following area is a safety zone: The Ohio River 
mile 265.2 to 266.2 and from Kanawha River mile 0.0 to 0.5, Point 
Pleasant, WV
    (b) Effective date. This rule is effective from 9:30 p.m. on July 
4, 2009 until 10:30 p.m. on July 4, 2009.
    (c) Regulations: (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited to all 
persons and vessels except participant vessels and those vessels 
specifically authorized by the Captain of the Port Ohio Valley or a 
designated representative.
    (2) Persons or vessels other than participating vessels and 
mariners requiring entry into or passage through the zone must request 
permission from the Captain of the Port Ohio Valley or a designated 
representative. They may be contacted on VHF-FM Channel 13 or 16 or by 
telephone at (800) 253-7465.
    (3) All persons and vessels shall comply with the instructions of 
the Captain of the Port Ohio Valley and designated on-scene U.S. Coast 
Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel 
include commissioned, warrant, and petty officers of the U.S. Coast 
Guard.

    Dated: May 1, 2009.
H.M. Nguyen,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. E9-13778 Filed 6-11-09; 8:45 am]
BILLING CODE 4910-15-P