[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Rules and Regulations]
[Pages 25496-25498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08905]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0314]
RIN 1625-AA00


Safety Zone; Cumberland River

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone for certain waters of the Cumberland River. This action is 
necessary to provide for the safety of life on the navigable waters of 
the Cumberland River near Cadiz, KY. This rule would prohibit persons 
and vessels from entering the safety zone unless authorized by the 
Captain of the Port Sector Ohio Valley (COTP) or a designated 
representative.

DATES: This rule is effective from May 4, 2023, through May 7, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0314 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email MST1 Evan Dawson, U.S. Coast Guard Marine Safety Unit 
Paducah; telephone 270-442-1621 x 2113, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations

[[Page 25497]]

CUMB Cumberland River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
CUMB Cumberland River
MM Mile Marker

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. This safety zone 
must be established by May 4, 2023 and there is a lack of 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 the public interest because immediate 
action is needed to respond to the potential safety hazards associated 
with a jet ski race.

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 (COTP) Sector Ohio Valley has determined 
that potential hazards associated with the large gathering of small 
craft vessels on to the Cumberland River (CUMB) MM 55 exists. This rule 
is needed to protect personnel, vessels, and the marine environment in 
the navigable waters within the safety zone while the event is 
occurring.

IV. Discussion of the Rule

    The COTP is establishing a safety zone from 6 a.m. May 4, 2023, to 
5 p.m. on May 7, 2023. The safety zone would cover all navigable waters 
within two hundred fifty feet of the racecourse at any point of the 
event. The duration of the zone is intended to ensure the safety of 
vessels and persons during the event. No vessel or person would be 
permitted to enter the safety zone without obtaining permission from 
the COTP or a 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. 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).
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. The Marine 
Event will be within a protected cove not utilized for commercial 
traffic, causing minimal disruption to vessel traffic. Moreover, the 
Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM 
marine channel 22-A about the enforcement time of the zone, and the 
rule would allow 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 
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 
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.

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,

[[Page 25498]]

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, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 96 hours that would prohibit entry within two 
hundred fifty feet of the event which is inside of a protected cove. 
Normally such actions are categorically excluded from further review 
under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

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

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T08-0314 to read as follows:


Sec.  165.T08-0314  Safety Zone; Cumberland River; Cadiz, Kentucky.

    (a) Location. The safety zone will cover all waters on the 
Cumberland River within two hundred fifty feet of the marine event, 
near Cadiz, KY, during daylight race activities drawing a line from 
36[deg]54'43.5'' N 87[deg]59'09.6'' W north west to 36[deg]54'44.9'' N 
87[deg]59'12.0'' W, continuing north east to 36[deg]54'53.5'' N 
87[deg]59'04.1'' W, and ending at 36[deg]54'47.1'' N 87[deg]58'53.0'' 
W.
    (b) Effective period. This rule will be effective from 6 a.m. on 
May 4, 2023 to 5 p.m. on May 7, 2023.
    (c) Enforcement period. This section will be subject to enforcment 
from 6 a.m. on May 4, 2023, and will continue through 5 p.m. on May 7, 
2023, or until the hazards associated with the Midamerica Watercross 
Championship Race, near Cadiz, KY, have been completed. If there is 
inclement weather or other disruptions the U.S. Coast Guard will inform 
mariners of the change in enforcement period via Broadcast Notice to 
Mariners on VHF-FM channel 16 and on-scene notice.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry of vessels or persons into the zone during transit 
operations 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 or a designated Coast Guard Auxiliary unit.
    (2) If permission is granted, all persons and vessels must comply 
with the instructions of the COTP or designated representative.

    Dated: April 21, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-08905 Filed 4-26-23; 8:45 am]
BILLING CODE 9110-04-P