[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32106-32108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10766]


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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 extending the duration of a temporary 
safety zone for all navigable waters of the Ohio River from mile marker 
(MM) 487.0 to MM 489.0. This action is necessary to provide for the 
safety of 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 vessel or 
persons into this zone is prohibited unless specifically authorized by 
the Captain of the Port, Sector Ohio Valley or a designated 
representative.

DATES: This rule is effective without actual notice from May 19, 2023, 
through May 19, 2023. For the purposes of enforcement, actual notice 
will be used from May 15, 2023, until May 19, 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 number 513-921-9033, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
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

    On May 1, 2023, the Coast Guard issued a temporary final rule 
establishing a safety zone on all waters of the Ohio River from MM 
487.0 to 489.0 to protect persons, vessels, and the marine environment 
from potential hazards created by Duke Energy's Static Wire Crossing 
operation (88 FR 28408, May 4, 2023). The original rule was effective 
through May 15, 2023. However, additional time is needed to conduct the 
static wire crossing, and, as a result, the Coast Guard needs to extend 
the safety zone through May 19, 2023. 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 
extension because it would be impracticable and contrary to the public 
interest. The Coast Guard was unable to publish an NPRM and hold a 
reasonable comment period for this rulemaking because it is 
impracticable due to the emergent nature of the continuing wire 
crossing operation and required publication of this extension.
    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's Static Wire 
Crossing operation will be a safety concern for all navigable waters on 
the Ohio River from MM 487.0 to 489.0. This rule is needed to ensure 
the safety of life and vessels on these navigable waters.

IV. Discussion of the Rule

    This rule extends the effective dates of an established safety 
zone, originally established on May 1, 2023, and effective through May 
15, 2023, through May 19, 2023. The safety zone includes all navigable 
waters of the Ohio River between MM 487.0 to 489.0. The extended 
duration of the zone is intended to protect personnel, vessels, and the 
maritime environment in these navigable waters while static wire 
crossing operations are conducted.. No vessel or persons will be 
permitted to enter the safety zone without obtaining permission from 
the COTP or a designated representative. Vessels may contact Sector 
Ohio Valley Command Center on VHF-FM Channel 16 or by telephone at 1-
800-253-7465. Person and vessel 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

[[Page 32107]]

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 limited duration of the safety zone. This 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. through May 19, 2023, or until the work is 
completed, whichever is sooner. 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 lasting for 30 days that will prohibit entry within certain 
navigable waters of the Chincoteague Bay. 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.

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) 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) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is

[[Page 32108]]

prohibited unless specifically authorized by the 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 contacted 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.
    (d) Enforcement period. This section will be enforced May 1, 2023, 
through May 19, 2023, unless an earlier end is announced by broadcast 
notice to mariners.

    Dated: May 15, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-10766 Filed 5-18-23; 8:45 am]
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