[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32110-32112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10715]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0354]
RIN 1625-AA00


Safety Zone; Kanawha River, Nitro, WV

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone for all 
navigable waters of the Kanawha River between mile markers 43 and 44. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from the potential hazards created by a fireworks display. 
Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by Captain of the Port Marine Safety Unit 
Huntington.

DATES: This rule is effective from 9 p.m. through 10 p.m. on May 27, 
2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0354 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 Chelsea Zimmerman, Marine Safety Unit Huntington, 
U.S. Coast Guard; (304) 733-0198, [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 we must establish the safety zone by 
May 27, 2023, and lack sufficient time to request public comments and 
respond to these comments before the safety zone must be established. 
Waiting for a full comment period to run would inhibit the Coast 
Guard's ability to keep the public safe from the hazards associated 
with a fireworks display and the ability to minimize the impact to 
vessel traffic on the navigable waterway.
    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 the Nitro Memorial Day Celebration taking place on the Kanawha 
River between mile marker 43 and mile marker 44.

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 Ohio Valley (COTP) has determined that 
potential hazards associated with Nitro Memorial Day Celebration 
starting May 27, 2023, will be a safety concern for anyone on the 
Kanawha River from mile marker 43 to mile marker 44. This rule is 
needed to protect personnel, vessels, and the marine environment from 
potential hazards associated with a fireworks display.

IV. Discussion of the Rule

    This rule establishes a safety zone from 9 p.m. through 10 p.m. on 
May 27, 2023. The safety zone will cover all navigable waters between 
mile markers 43 and 44 on the Kanawha River. The duration of the safety 
zone is intended to protect personnel, vessels, and the marine 
environment from potential hazards created by a fireworks display.
    No vessel or person will be 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 (USCG) assigned to units under 
the operational control of the COTP. To seek permission to enter, 
contact the COTP or a designated representative via VHF-FM channel 16, 
or through Marine Safety Unit Huntington at 304-563-9084. Persons and 
vessels permitted to enter the safety zone must comply with all lawful 
orders or directions issued by the COTP or designated representative. 
The COTP or a designated representative will inform the public of the 
effective period for the safety zone as well as any changes in the 
dates and times of enforcement through Local Notice to Mariners (LNMs), 
Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information 
Bulletins (MSIBs), 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. 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, and duration of the safety zone. This safety zone impacts a 
1-mile stretch of the Kanawha River for a limited duration of less than 
2 hours. Vessel traffic will be informed about the safety zone through 
local notices to mariners. Moreover, the Coast Guard will issue 
Broadcast Notices to Mariners via VHF-FM marine channel 16 about the 
zone and the rule allows vessels to seek permission to transit 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

[[Page 32111]]

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 lasting one hour that will limit access of the Kanawha 
River from mile marker 43 to mile marker 44. 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. 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.T08-0354 to read as follows:


Sec.  165.T08-0354  Safety Zone; Kanawha River, Nitro, WV.

    (a) Regulated area. The regulations in this section apply to the 
following area: all navigable waters of the Kanawha River from mile 
marker 43 to mile marker 44 near Nitro City Park, Park Avenue, Nitro, 
WV.
    (b) Definitions. As used in this section:
    Designated representative means a Coast Guard Patrol Commander 
(PATCOM), 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 Ohio Valley 
(COTP) in the enforcement of the regulations in this section.
    Participant means all persons and vessels registered with the event 
sponsor as a participants in the race.
    (c) Regulations. (1) The Coast Guard may patrol the event area 
under the direction of a designated Coast Guard Patrol Commander. The 
Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by 
the call sign ``PATCOM.''
    (2) All persons and vessels not registered with the sponsor as 
participants or official patrol vessels are considered spectators. The 
``official patrol vessels'' consist of any Coast Guard, state or local 
law enforcement, and sponsor provided vessels assigned or approved by 
the Commander, Eighth Coast Guard District, to patrol the event.
    (3) Spectator vessels desiring to transit the regulated area may do 
so only with prior approval of the Patrol Commander and when so 
directed by that officer and will be operated at a no wake speed in a 
manner which will not endanger participants in the event or any other 
craft.
    (4) No spectator shall anchor, block, loiter, or impede the through 
transit of participants or official patrol vessels in the regulated 
area during the enforcement period in paragraph (d) of this section, 
unless cleared for entry by or through an official patrol vessel.
    (5) The Patrol Commander may forbid and control the movement of all 
vessels in the regulated area. When hailed or

[[Page 32112]]

signaled by an official patrol vessel, a vessel shall come to an 
immediate stop and comply with the directions given. Failure to do so 
may result in expulsion from the area, citation for failure to comply, 
or both.
    (6) Any spectator vessel may anchor outside the regulated area 
specified in paragraph (a) of this section, but may not anchor in, 
block, or loiter in a navigable channel.
    (7) The Patrol Commander may terminate the event or the operation 
of any vessel at any time it is deemed necessary for the protection of 
life or property.
    (8) To seek permission to enter, contact the COTP or the COTP's 
representative by VHF-FM marine radio channel 16 or phone at 1-800-253-
7465. Those in the regulated area must comply with all lawful orders or 
directions given to them by the COTP or the designated representative.
    (9) The COTP will provide notice of the regulated area through 
advanced notice via local notice to mariners and broadcast notice to 
mariners and by on-scene designated representatives.
    (d) Enforcement period. The safety zone in paragraph (a) of this 
section will be enforced from 9 p.m. to 10 p.m. on May 27, 2023.

    Dated: May 9, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2023-10715 Filed 5-18-23; 8:45 am]
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