[Federal Register Volume 82, Number 71 (Friday, April 14, 2017)]
[Rules and Regulations]
[Pages 17940-17942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07518]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0174]
RIN 1625-AA00


Safety Zone; Ohio River Miles 803.5 to 804.5, Henderson, KY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters of the Ohio River, surface to bottom, extending 
from miles 803.5 to 804.5. This temporary safety zone is necessary to 
provide for the safety of life on these navigable waters near 
Henderson, KY, during the Henderson Breakfast Lions Club Tri-Fest 
fireworks display. Entry of vessels or persons 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 p.m. on April 21, 2017, through 
9:30 p.m. on April 22, 2017. This rule will be enforced from 9 p.m. to 
9:30 p.m. on April 21, 2017, unless the fireworks display is postponed 
because of adverse weather, in which case this rule will be enforced 
from 9 p.m. to 9:30 p.m. on April 22, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0174 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 about this 
rulemaking, call or email Petty Officer James Robinson, Sector Ohio 
Valley, U.S. Coast Guard; telephone 502-779-5347, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Ohio Valley
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

    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. We lack 
sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule. The NPRM process would 
delay the immediate action needed to protect personnel, vessels, and 
the marine environment from potential safety hazards associated with 
the fireworks event. In addition, the fireworks event is being held 
only one weekend later than the currently published date, which had to 
be rescheduled due to a holiday scheduling conflict. Upon receiving 
full details of this event, the Coast Guard determined that a safety 
zone was necessary to protect life and property during a fireworks 
display on or over this navigable waterway.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register. Delaying this rule 
would be contrary to public interest of ensuring the safety of 
spectators and vessels during the event. An immediate action is 
necessary to prevent the loss of life and property during the hazards 
created by a fireworks display on or over the waterway. Broadcast 
Notices to Mariners (BNM) and information sharing with the waterway 
users will update mariners of the restrictions, requirements and 
enforcement times during this temporary situation.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Ohio Valley (COTP) has determined that 
potential hazards associated with the fireworks display on April 21, 
2017 will be a safety concern for all waters of the Ohio River, surface 
to bottom, extending from miles 803.5 to 804.5. The purpose of this 
rule is to ensure safety of life on the navigable waters within the 
temporary zone before, during, and after the Henderson Breakfast Lions 
Club Tri-Fest fireworks display.

IV. Discussion of the Rule

    This rule establishes a safety zone on April 21, 2017, or in the 
case of a rain delay, on April 22, 2017. The safety zone will cover all 
waters of the Ohio River, surface to bottom, extending from miles 803.5 
to 804.5. Transit into and through this restricted area is prohibited 
from 9 p.m. to 9:30 p.m. on April 21, 2017, and, in case of a delay 
because of rain, during the same hours on April 22, 2017. The duration 
of the safety zone is intended to ensure the safety of vessels and 
these navigable waters before, during, and after the scheduled 
fireworks displays. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP or a designated 
representative. The COTP may be contacted by telephone at 1-800-253-
7475 or can be reached by VHF-FM channel 16. Public notifications will 
be made to the local maritime community prior to the event through the 
Local Notice to Mariners (LNM), and BNMs.

[[Page 17941]]

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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. The temporary 
safety zone will only be in effect for approximately 30 minutes. The 
Coast Guard expects minimum adverse impact to mariners from the safety 
zone's activation as the event has been extensively advertised to the 
public. Also, mariners may request authorization from the COTP or the 
designated representatives to transit the safety zones.

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 
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 $165,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such 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 
Management Directive 023-01 and Commandant Instruction M16475.lD, 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 lasting less than one hour that will 
prohibit entry on all waters of the Ohio River, surface to bottom, 
extending from mile 803.5 to 804.5. It is categorically excluded from 
further review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. An environmental analysis checklist supporting this 
determination and a Categorical Exclusion Determination are 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: 33 U.S.C. 1231; 50 U.S.C. 191; 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.T08-0174 to read as follows:

[[Page 17942]]

Sec.  165.T08-0174  Safety zone; Ohio River Miles 803.5 to 804.5, 
Henderson, KY.

    (a) Location. The following area is a temporary safety zone: All 
navigable waters of the Ohio River between mile 803.5 and mile 804.5, 
Henderson, KY, extending the entire width of the Ohio River.
    (b) Enforcement period. This section will be enforced from 9 p.m. 
to 9:30 p.m. on April 21, 2017. In case of a delay because of rain, the 
section will be enforced from 9 p.m. to 9:30 p.m. on April 22, 2017.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into the zone described in paragraph (a) of this 
section is prohibited unless specifically authorized by the Captain of 
the Port Ohio Valley (COTP) or designated personnel. Persons or vessels 
desiring to enter into or pass through the zone must request permission 
from the COTP or a designated representative. They may be contacted on 
VHF-FM radio channel 16 or phone at 1-800-253-7465.
    (2) Persons and vessels permitted to enter this safety zone, must 
transit at the slowest safe speed and comply with all lawful directions 
issued by the COTP or the designated representative.
    (d) Informational broadcasts. The COTP or a designated 
representative will inform the public through broadcast notices to 
mariners of the enforcement period for the regulated area as well as 
any changes in the planned schedule.

    Dated: April 10, 2017.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2017-07518 Filed 4-13-17; 8:45 am]
BILLING CODE 9110-04-P