[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67089-67091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21381]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0721]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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[[Page 67090]]

SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone for the Ohio River from October 2 through October 5, 2023, at mile 
marker 79.5 to mile marker 80 from 8 a.m. through 7 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 October 2, 2023, through 7 
p.m. on October 5, 2023. This rule will be enforced from 8 a.m. through 
7 p.m. each day of its effective period.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0721 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 <a href="/cdn-cgi/l/email-protection#eca995838e89c2a8c2a18580809fac999f8f8bc2818580"><span class="__cf_email__" data-cfemail="7d3804121f18533953301411110e3d080e1e1a53101411">[email protected]</span></a>.

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 it is impracticable and contrary to 
the public interest. This safety zone must be established by October 2, 
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 
derby 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 October 2, 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 October 2 
through October 5, 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 7 
p.m. daily. 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 that will be enforced 
each day from 8 a.m. until 7 p.m. on October 2 through October 5, 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 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. 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 11 hours each day from 
October 2 through October 5, 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

[[Page 67091]]

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 
temporary safety zone lasting 11 hours each day from October 2 through 
October 5, 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.T08-0721 to read as follows:


Sec.  165.T08-0721  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. To seek permission, 
concerned traffic may reach contact the event organizers on channel 13 
or at (304) 997-5418. 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 8 a.m. 
through 7 p.m. from October 2, 2023, through October 5, 2023. The 
temporary safety zone will be enforced during the 11 hours helicopter 
operation.

Eric J. Velez,
Commander, U.S. Coast Guard, Captain of the Port, MSU Pittsburgh.
[FR Doc. 2023-21381 Filed 9-28-23; 8:45 am]
BILLING CODE 9110-04-P


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