[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Rules and Regulations]
[Pages 22704-22706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10467]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0358]
RIN 1625-AA00


Safety Zone; Kanawha River, Charleston, WV

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 Kanawha River from mile marker 58.1 to mile 
marker 59.1. This temporary safety zone is necessary to protect 
persons, vessels, and the marine environment from potential hazards 
associated with the Live on the Levee fireworks display. Entry into 
this safety zone is prohibited unless specifically authorized by the 
Captain of the Port Sector Ohio Valley or a designated representative.

DATES: This rule is effective from 9:15 p.m. through 10:15 p.m. on May 
24, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0358 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 Wesley Cornelius, Marine Safety Unit 
Huntington, U.S. Coast Guard; telephone 304-733-0198, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
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. It is 
impracticable to publish an NPRM because we must establish this safety 
zone by May 24, 2019, and we lack sufficient time to provide reasonable 
comment period and then consider those comments before issuing the 
rule. The NPRM process would delay the establishment of the safety zone 
until after the date of the event and compromise public safety.
    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 impracticable and contrary to public interest 
because immediate action is necessary to protect persons, vessels and 
the marine environment from the potential hazards associated with the 
fireworks display.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Sector Ohio Valley (COTP) has determined 
that potential hazards associated with a fireworks display taking place 
over this section of the Kanawha River will be a safety concern for 
anyone within a one-mile stretch of the waterway. This rule is needed 
to protect persons, vessels, and the marine environment in the 
navigable waters within the safety zone before, during, and after the 
scheduled fireworks display.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone for the Live on the 
Levee fireworks display from 9:15 p.m. until 10:15 p.m. on May 24, 
2019. The safety

[[Page 22705]]

zone covers all navigable waters of the Kanawha River from mile marker 
(MM) 58.1 to MM 59.1, in Charleston, WV. The duration of this safety 
zone is intended to protect persons, vessels, and the marine 
environment in these navigable waters during the fireworks display.
    No vessel or person is permitted to enter this safety zone without 
obtaining permission from the COTP or a designated representative. A 
designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard coxswain, petty officer, or other officer 
operating a Coast Guard vessel and a Federal, State, and local officer 
designated by or assisting the Captain of the Port Sector Ohio Valley. 
To seek permission to enter, contact the COTP or designated 
representative via radio on channel 16 or by telephone at 1-800-253-
7465. If permission is granted, all persons and vessels shall transit 
at their slowest safe speed and comply with the instructions of the 
COTP or designated representative. The COTP or a designated 
representative will inform the public of any changes in the date and 
times of enforcement through Broadcast Notices to Mariners (BNMs), 
Local Notices to Mariners (LNMs), and/or Safety Marine Information 
Broadcasts (SMIBs), as appropriate.

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, and duration of the temporary safety zone. This rule involves 
a temporary safety zone lasting only one hour and thirty minutes that 
will prohibit entry on a one-mile stretch of the Kanawha River on one 
evening. Moreover, the Coast Guard will issue a BNMs via VHF-FM marine 
channel 16 about the safety zone, and the rule allows vessels to seek 
permission to enter the 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 
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 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 only one hour that will prohibit entry on a one-
mile stretch of the Kanawha River on one evening. It is categorically 
excluded from further review under paragraph L60(a) of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of 
Environmental Consideration

[[Page 22706]]

supporting this determination is 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: 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.


0
2. Add Sec.  165.T08-0358 to read as follows:


Sec.  165.T08-0358   Safety Zone; Kanawha River, Charleston, WV.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Kanawha River from mile marker (MM) 58.1 to MM 59.1.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sector Ohio Valley (COTP) in the enforcement of the 
safety zone.
    (c) Enforcement period. This section will be enforced from 9:15 
p.m. through 10:15 p.m. on May 24, 2019.
    (d) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative. No vessel or person is permitted to 
enter this safety zone without obtaining permission from the COTP or a 
designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by via radio on channel 16 or by telephone at 1-800-253-
7465. Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (e) Informational broadcast. The COTP or a designated 
representative will inform the public of any changes in the date and 
times of enforcement through Broadcast Notices to Mariners (BNMs), 
Local Notices to Mariners (LNMs), and/or Safety Marine Information 
Broadcasts (SMIBs), as appropriate.

    Dated: May 15, 2019.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2019-10467 Filed 5-17-19; 8:45 am]
 BILLING CODE 9110-04-P