[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Rules and Regulations]
[Pages 28408-28410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09589]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0216]
RIN 1625-AA00


Safety Zone; Ohio River, Cincinnati, OH

AGENCY: Coast Guard, Department of Homeland Security (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 from mile marker (MM) 487.0 to 
MM 489.0. The safety zone is needed to protect personnel, vessels, and 
the marine environment from potential hazards created by Duke Energy's 
Static Wire Crossing operation taking place on the Ohio River from MM 
487.0 to MM 489.0. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port, 
Sector Ohio Valley.

DATES: This rule is effective without actual notice from May 4, 2023, 
through May 15, 2023. For the purposes of enforcement, actual notice 
will be used from May 1, 2023, until May 4, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0216 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 Petty Officer Thomas Harp, MSD Cincinnati, U.S. Coast 
Guard; telephone 513-921-9033, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COPT Captain of the Port Sector Ohio Valley
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
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 must 
establish this regulation by May 1, 2023, and lack sufficient time to 
provide a reasonable comment period and then consider those comments 
before issuing this 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 impracticable and contrary to the public interest 
because immediate action is necessary to protect persons and property 
from the dangers associated with the static wire crossing operation.

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 the Duke Energy Static Wire 
Crossing operation occurring from May 1, 2023, through May 15, 2023, 
will be a safety concern for all navigable waters on the Ohio River 
from MM 487.0 to MM 489.0. The purpose of this rule is to ensure the 
safety of life and vessels on these navigable waters before, during, 
and after the event.

IV. Discussion of the Rule

    This rule establishes a safety zone from May 1, 2023, through May 
15,

[[Page 28409]]

2023, between the hours of 7 a.m. through 5 p.m. each day, on the Ohio 
River between MM 487.0 through MM 489.0 for the duration of the Duke 
Energy Static Wire Crossing operation. Transit through and into this 
area is prohibited during periods of enforcement between May 1, 2023, 
through May 15, 2023. The periods of enforcement will be immediately 
prior to, during, and 30 minutes after any vessel movement and wire 
transfer operation. The Coast Guard was informed that the operations 
would take place between the hours of 7 a.m. through 5 p.m. only. A 
safety vessel will coordinate all vessel traffic during the enforcement 
periods. The COTP or a designated representative will inform the public 
through Broadcast Notice to Mariners (BNM), Local Notice to Mariners 
(LNM), or through other means of public notice at least 1 hour in 
advance of each enforcement period.
    The duration of the zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters while the Duke 
Energy Static Wire Crossing operation is occurring. No vessel or person 
will permitted to enter the safety zone without obtaining permission 
from the COTP or a 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 Sector 
Ohio Valley. They may be contacted on VHF-FM Channel 16 or by telephone 
at 1-800-253-7465. Persons and vessels permitted to enter this 
regulated area 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. 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. This safety 
zone will be in place on a two mile stretch of the Ohio River between 
the hours of 7 a.m. through 5 p.m. only for 15 days. The Coast Guard 
will issue a Local Notice to Mariners via VHF-FM marine channel 16 
about the temporary safety zone. This rule allows vessels to seek 
permission from the COTP or a designated representative 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 
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, 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 that prohibits entry on a two mile stretch of the Ohio 
River between 7 a.m. through 5 p.m. for 15 days. It is categorically 
excluded from further review under paragraph L60(a) of Appendix A, 
Table 1 of DHS Instruction

[[Page 28410]]

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.T08-0216 to read as follows:


Sec.  165.T08-0216   Safety Zone; Ohio River, Cincinnati, OH.

    (a) Location. All navigable waters of the Ohio River between mile 
marker (MM) 487.0 to MM 489.0 in Finney, OH.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
specifically authorized by the Captain of the Port Sector Ohio Valley 
(COTP) or a designated representative. 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 contact on VHF-FM 
radio channel 16 or phone at 1-800-253-4765.
    (2) Persons and vessels permitted to enter the safety zone listed 
in paragraph (a) of this section must transit at the slowest safe speed 
and comply with all lawful directions issued by the COTP or a 
designated representative.
    (c) Period of enforcement. The temporary safety zone listed in 
paragraph (a) of this section will be subject to enforcement from May 
1, 2023, through May 15, 2023, from 7 a.m. through 5 p.m., immediately 
before, during, and 30 minutes after each wire crossing evolution.
    (d) Informational broadcasts. The COTP or a designated 
representative will inform the public through broadcast notice to 
mariners of the enforcement period of the temporary safety zone as well 
as any changes in the planned schedule.

    Dated: April 17, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-09589 Filed 5-2-23; 11:15 am]
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