[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Rules and Regulations]
[Pages 66625-66627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28131]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0168]
RIN 1625-AA00


Safety Zone; Ohio River, Louisville, KY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing an emergency temporary safety 
zone for all navigable waters of the Ohio River extending from mile 
marker (MM) 530.6 to MM 533.0. This emergency safety zone is needed to 
protect life, vessels, and the marine environment due to the increase 
in river level, extreme currents and excessive drift causing vessels to 
allide with Markland Lock and Dam. Entry of vessels or persons into 
this zone is prohibited unless specifically authorized by the Captain 
of the Port Sector Ohio Valley (COTP) or a designated representative.

DATES: This rule is effective without actual notice from December 27, 
2018 through January 20, 2019. For the purposes of enforcement, actual 
notice will be used from December 20, 2018 until December 27, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0168 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 Petty Officer Riley Jackson, 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 Sector 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 and contrary to 
the public interest. In the past 36 hours, increase in the river level, 
extreme currents and excessive drift were noted as causal factors for 
two allisions with the long wall to the Markland Lock approach. The 
safety zone must be established immediately to protect people and 
vessels transiting the Ohio River, and we lack sufficient time to 
provide a reasonable comment period and then consider those comments 
before issuing the rule.
    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 the effective date of 
this rule would be contrary to public interest because immediate action 
is needed to protect personnel, vessels, and the marine environment 
from potential hazards due to the increase in the river level, and 
extreme currents and drift conditions.

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 Sector Ohio Valley (COTP) has determined 
that potential hazards associated with the river current at Markland 
Lock and Dam will be a safety concern for anyone on within the 3.6-mile 
span of the Ohio River. This rule is necessary to protect persons, 
vessels, and the marine environment in the navigable waters within the 
safety zone.

[[Page 66626]]

IV. Discussion of the Rule

    The Coast Guard is establishing a temporary emergency safety zone 
for all navigable waters on the Ohio River from Mile Marker (MM) 530.6 
and MM 533.0, extending the entire width of the Ohio River. Transit 
into and through this area is prohibited for all traffic beginning 
December 20, 2018 and will continue through January 20, 2019 or until 
the hazard has been decreased, whichever occurs first. The COTP or a 
designated representative will terminate the enforcement of this safety 
zone before January 20, 2019 if the river conditions decrease. Entry 
into this safety zone is prohibited unless specifically authorized by 
the COTP or his designated representative. A designated representative 
is a commissioned, warrant, or petty officer of the U.S. Coast Guard 
assigned to units under the operational control of USCG Sector Ohio 
Valley.
    Requests for entry will be considered and reviewed on a case-by-
case basis. The COTP may be contacted by telephone at 502-779-5422 or 
can be reached by VHF-FM channel 16. Persons and vessels permitted to 
enter this safety zone must transit at their slowest safe speed and 
comply with all lawful directions issued by the COTP or the designated 
representative.

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 size, 
location, duration, and time-of-year of the safety zone. This safety 
zone will restrict vessel traffic from entering or transiting within a 
3.6 mile area of navigable waterways on the Ohio River between MMs 
530.6 and 533.0. Moreover, the Coast Guard will issue Broadcast Notice 
to Mariners via VHF-FM marine channel 16 about the safety zone, and the 
rule allows vessels to seek permission to enter the safety zone.

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 
Management Directive 023-01, which guides the Coast Guard in complying 
with the National Environmental Policy Act of 1969 (NEPA)(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 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. Because this safety zone 
is established in response to an emergency situation a Record of 
Environmental Consideration (REC) is not required, but if necessary, 
will be

[[Page 66627]]

made available as 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.T08-0168 to read as follows:


Sec.  165.T08-0168  Safety Zone; Ohio River, Louisville, KY.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Ohio River from Mile Marker (MM) 530.6 to MM 533.0, 
extending the entire width of the river.
    (b) Enforcement period. This section is effective without actual 
notice from December 27, 2018 through January 20, 2019, or until the 
hazard has decreased, whichever occurs first. For the purposes of 
enforcement, actual notice will be used from December 20, 2018 until 
December 27, 2018.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry of vessels or persons into this zone is prohibited 
unless specifically authorized by the Captain of the Port Sector Ohio 
Valley (COTP) or designated representative. A designated representative 
is a commissioned, warrant, or petty officer of the U.S. Coast Guard 
assigned to units under the operational control of USCG Sector Ohio 
Valley.
    (2) Vessels requiring entry into this safety zone must request 
permission from the COTP or a designated representative. To seek entry 
into the safety zone, contact the COTP or the COTP's representative by 
telephone at 502-779-5422 or on VHF-FM channel16.
    (3) Persons and vessels permitted to enter this safety zone must 
transit at their slowest safe speed and comply with all lawful 
directions issued by the COTP or the designated representative.
    (d) Information broadcasts. The COTP or a designated representative 
will inform the public through Broadcast Notices to Mariners of any 
changes in the planned schedule.

    Dated: December 20, 2018.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2018-28131 Filed 12-26-18; 8:45 am]
 BILLING CODE 9110-04-P