[Federal Register Volume 88, Number 158 (Thursday, August 17, 2023)]
[Rules and Regulations]
[Pages 55913-55915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17705]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0613]
RIN 1625-AA00


Safety Zone; Kanawha River, Mile Markers 41.5 to 42.5, Nitro, WV, 
Change in Dates

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a half mile radius of the Donald Legg Memorial 
Bridge. The safety zone is needed to protect personnel, vessels, and 
the marine environment from potential hazards created by adding a 
center section of the bridge. Entry of vessels or persons into this 
zone is prohibited unless specifically authorized by the Captain of the 
Port Sector Ohio Valley (COTP) or a designated representative. This 
temporary final rule reflects a change in the dates of the bridge 
construction than we previously announced in a prior temporary final 
rule.

DATES: This rule is effective from 5:30 a.m. on August 28, 2023, 
through 7 p.m. on August 29, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0613 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 Chelsea Zimmerman, Marine Safety Unit 
Huntington, U.S. Coast Guard, telephone 304-733-0198, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security

[[Page 55914]]

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 previously published a temporary final rule for a 
safety zone on August 2, 2023, titled ``Safety Zone; Kanawha River, 
Mile Markers 41.5 to 42.5, Nitro, WV'' at 88 FR 50765. That safety zone 
was going to be effective August 24, 2023 though August 25, 2023. The 
Coast Guard received notice on August 9, 2023, that the project manager 
must change the dates of the bridge construction. Therefore, we must 
change the effective dates and enforcement times from that original 
safety zone temporary final rule. This rule replaces the previous rule 
issued on August 2, 2023 at 88 FR 50765. We will no longer be enforcing 
the safety zone on the dates described in that rule. Instead, this 
safety zone will be enforced on August 28, 2023 and August 29, 2023 
when the bridge construction is scheduled to occur.
    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 publishing an NPRM would be impracticable. 
A safety zone is needed to alleviate safety concerns associated with 
construction operations for the purpose of adding the center section of 
the Donald Legg Memorial Bridge. It is impracticable to publish an NPRM 
because late notice was given for the change in enforcement dates, 
which now require the establishment of a safety zone by August 28th, 
2023, and lack 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 impracticable and contrary to the public interest 
because we must establish the safety zone by August 28, 2023, in order 
to protect personnel, vessels, and the marine environment from the 
potential safety hazards associated with the bridge construction 
beginning on that date.

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 safety needs associated with construction operations on the Donald 
Legg Memorial Bridge on August 28, 2023, and August 29, 2023, present a 
safety concern. The purpose of this rulemaking is to ensure the safety 
of the public surrounding regulated area before, during, and after the 
construction event.

IV. Discussion of the Rule

    This rule establishes a safety zone that will be enforced from 5:30 
a.m. until 8 p.m. on August 28, 2023, and from 7 a.m. until 7 p.m. on 
August 29, 2023. The safety zone will cover all navigable waters 
between mile markers 41.5 to 42.5 on the Kanawha River. The duration of 
the zone is intended to protect personnel, vessels, and the marine 
environment in these navigable waters while the bridge span is being 
added. 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 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.
    Persons or vessels seeking to enter the safety zone must request 
permission from the COTP on VHF-FM channel 16 or by telephone at 1-502-
779-5424. If permission is granted, all persons and vessels shall 
comply with the instructions of the COTP or designated representative.
    The COTP or a designated representative will inform the public of 
the enforcement times and date for this safety zone through Broadcast 
Notices to Mariners, Local Notices to Mariners, and/or Safety Marine 
Information Broadcasts 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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
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 regulated area. This rule is 
limited to the Kanawha River from mile 41.5 to 42.5 on August 28, 2023, 
and August 29, 2023, and will be enforced only during the times 
specified. Moreover, the Coast Guard will issue Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the regulated area and the 
rule allows vessels to seek permission to enter the area.

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

[[Page 55915]]

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 
establishing a temporary safety zone on the Kanawha River at mile 41.5 
to 42.5 on August 28, 2023, and August 29, 2023. 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. Revise Sec.  165.T08-0613 to read as follows:


Sec.  165.T08-0613  Safety Zone; Kanawha River, Mile Markers 41.5 to 
42.5 Nitro, WV, Change in Dates.

    (a) Location. The following area is a safety zone: all navigable 
waters of the Kanawha River from mile marker 41.5 to mile marker 42.5, 
extending the entire width of the river.
    (b) Definitions. 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.
    (c) 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. The Coast Guard may patrol the event 
area under the direction of a designated Coast Guard Patrol Commander.
    (2) To seek permission to enter, the COTP or the COTP's 
representative may be contacted on Channel 16 VHF-FM (156.8 MHz) by the 
call sign ``PATCOM'', or phone at 1-502-779-5424. 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.
    (3) The Patrol Commander may forbid and control the movement of all 
vessels in the regulated area. When hailed or 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.
    (4) 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.
    (5) 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 periods. This section will be enforced from 5:30 
a.m. to 8 p.m. on August 28, 2023, and 6:30 a.m. to 7 p.m. on August 
29, 2023.

    Dated: August 12, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-17705 Filed 8-16-23; 8:45 am]
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