[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Rules and Regulations]
[Pages 58108-58110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18347]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0660]
RIN 1625-AA00


Safety Zone; Ohio River Mile Markers 79.5-80, Wellsburg, WV

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the Ohio River from September 12 through September 15, 2023, at mile 
marker 79.5 to mile marker 80 from 8 a.m. through 5 p.m. each day. This 
action is necessary to provide for the safety of life on the navigable 
waters during a helicopter operation. This rule prohibits persons and 
vessels from being in the safety zone unless authorized by the Captain 
of the Port Pittsburgh (COTP) or a designated representative.

DATES: This rule is effective from 8 a.m. on September 12, 2023 through 
5 p.m. on September 15, 2023. This rule will be enforced from 8 a.m. 
through 5 p.m. each day it is effective.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0660 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 LTJG Eyobe Mills, Marine Safety Unit Pittsburgh, U.S. 
Coast Guard, at telephone 412-221-0807, email [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

[[Page 58109]]

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 and contrary to 
the public interest. This safety zone must be established by September 
12, 2023, to provide for the safety of life on the navigable waters 
during a helicopter operation, and we lack sufficient time to provide a 
reasonable comment period and then consider those comments before 
issuing this rule. The NPRM process would delay the establishment of 
the safety zone until after the date of the helicopter operation. 
Vessels inside of the safety zone have the potential of getting hit by 
debris from the helicopter.
    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 action is needed by September 12, 2023, to ensure the safety of 
the of life on the navigable waters during a helicopter 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 Pittsburgh (COTP) has determined that 
potential hazards associated with a helicopter operation on September 
12 through September 15, 2023, will be a safety concern for anyone on 
the Ohio River from mile markers 79.5 to mile marker 80 from 8 a.m. to 
5 p.m. The purpose of this rule is to ensure safety of the participant, 
vessels, and the navigable waters in the safety zone before, during, 
and after the scheduled event.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone each day from 8 a.m. 
until 5 p.m. on September 12 through September 15, 2023. The safety 
zone will cover all navigable waters on the Ohio River from mile 
markers 79.5 to mile marker 80. The duration of the zone is intended to 
protect personnel, vessels, and the marine environment in the navigable 
waters during an installation of nine aerial transverse wirelines using 
a helicopter.
    No vessel or person is permitted to enter the safety zone without 
obtaining permission from the COTP or a designated representative of 
the COTP. 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 Pittsburgh at 412-221-0807. 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, 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 size, location, 
and duration of the temporary safety zone. This safety zone only 
impacts a 0.5 mile stretch on the Ohio River for 9 hours each day from 
September 12 through September 15, 2023. Moreover, the Coast Guard will 
issue Local Notice to Mariners and Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone and the rule allows vessels to 
seek permission from the COTP 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 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

[[Page 58110]]

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 
temporary safety zone lasting 9 hours each day from September 12 
through September 15, 2023, on the Ohio River. 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

    Marine Safety, Navigation (water), Reporting, and recordkeeping 
requirements, 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.T08-0660 to read as follows:


Sec.  165.T08-0660  Safety Zone; Ohio River, Wellsburg, WV.

    (a) Location. The following area is a temporary safety zone on the 
Ohio River from mile marker 79.5 to mile marker 80.
    (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 Pittsburgh (COTP) in the enforcement of the safety 
zone. Designated representative include safety boat provided by the 
event organizers.
    (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.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative on Channel 16 or at 412-670-4288. 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.
    (d) Enforcement period. This section will be enforced each day from 
8 a.m. through 5 p.m. from September 12, 2023, through September 15, 
2023. The temporary safety zone will be enforced during the 9 hours 
helicopter operation on these days.

Eric J. Velez,
Commander, U.S. Coast Guard, Captain of the Port, MSU Pittsburgh.
[FR Doc. 2023-18347 Filed 8-24-23; 8:45 am]
BILLING CODE 9110-04-P