[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Rules and Regulations]
[Pages 72370-72372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23236]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0797]
RIN 1625-AA00


Safety Zone; Cumberland River, Nashville, TN

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 of the Cumberland River extending from mile marker 190 
through 191. The safety zone is needed to protect personnel, vessels, 
and the marine environment from potential hazards created by aerial 
operations. 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 from 7 a.m. on October 21, 2023 through 6 
p.m. on October 22, 2023. This rule will be enforced from 7 a.m. 
through 6 p.m. daily during the effective period.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0797 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 Joshua Carter, MSD Nashville, U.S. Coast 
Guard; telephone 615-736-5421, 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

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 immediate action is needed to respond 
and repair to the potential safety hazards associated with the aerial 
operations. It is impracticable to publish an NPRM because we must 
establish this safety zone by October 21st, 2023. An aerial conductor 
will be replaced by Nashville Electric Service between mile markers 
190-191 which could cause a hazard to navigation on the Cumberland 
River. The safety zone must be established to protect people and 
vessels associated with and resulting from the aerial operations and we 
lack sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule. This safety zone may 
include closures or navigation restrictions and requirements that are 
vital to maintain safe navigation on the Cumberland River during aerial 
operations.
    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 because action is needed to respond to

[[Page 72371]]

the potential safety hazards associated with the aerial operations 
starting October 21, 2023.

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 aerial operations from 
October 21 and 22, 2023, will be a safety concern for anyone within 
mile marker 190-191. This rule is needed to protect personnel, vessels, 
and the marine environment in the navigable waters within the safety 
zone while the aerial operations are taking place.

IV. Discussion of the Rule

    This rule establishes a safety zone that will be enforced from 7 
a.m. until 6 p.m. on October 21 and 22, 2023. The safety zone will 
cover all navigable waters within mile markers 190-191. The duration of 
the zone is intended to protect personnel, vessels, and the marine 
environment in these navigable waters while the aerial operations are 
being conducted. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP or a 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 location of 
the event on the Cumberland River lasting only 11 hours daily for two 
days. Vessels will be able to contact the COTP for instructions on how 
to transit around the zone safely.

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, this rule will only last 11 hours, 
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 safety 
zone lasting only 11 hours a day, for two days, that will prohibit 
entry within mile marker 181-183 of the Cumberland 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.

[[Page 72372]]

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.T08-0797 to read as follows:


Sec.  165.T08-0797  Safety Zone; Cumberland River, Nashville, TN.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Cumberland River from Mile Marker 190 through 191, 
extending the entire width of the river.
    (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) 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 
COTPs designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by 502-779-5422 or on VHR-FM channel 16. 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 from 7 a.m. 
through 6 p.m. daily on October 21, 2023 through October 22, 2023.

    Dated: October 16, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-23236 Filed 10-19-23; 8:45 am]
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