[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Rules and Regulations]
[Pages 46781-46783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17892]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0451]
RIN 1625-AA00


Safety Zone; Ohio River, Newburgh, IN

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters of the Ohio River extending the entire width of 
the river, from mile marker (MM) 777.3 to MM 778.3. This action is 
necessary to provide for the safety of life on these navigable waters 
near Newburgh, Indiana during the City of Newburgh fireworks display on 
September 4, 2021. This regulation prohibits persons and vessels from 
being in the safety zone unless authorized by the Captain of the Port 
Sector Ohio Valley or a designated representative.

DATES: This rule is effective from 9:30 p.m. through 10 p.m. on 
September 4, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0451 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 MST3 Christopher Matthews, U.S. Coast Guard; telephone 
502-779-5334, email <a href="/cdn-cgi/l/email-protection#a0e3c8d2c9d3d4cfd0c8c5d28ef38eedc1d4d4c8c5d7d3e0d5d3c3c78ecdc9cc"><span class="__cf_email__" data-cfemail="480b203a213b3c2738202d3a661b6605293c3c202d3f3b083d3b2b2f66252124">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Ohio Valley
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 June 17, 2021, the Historic Newburgh, Inc notified the Coast 
Guard that it will be conducting a fireworks display from 9:30 p.m. 
though 10 p.m. on September 4, 2021. The fireworks are to be launched 
from the shore of the Ohio River at approximately mile marker (MM) 
777.3 to MM 778.3. Hazards from firework displays include accidental 
discharge of fireworks, dangerous projectiles, and falling hot embers 
or other debris. The Captain of the Port Sector Ohio Valley (COTP) has 
determined that potential hazards associated with the fireworks to be 
used in this display would be a safety concern for anyone on a one-mile 
stretch of the Ohio River. In response, on July, 2, 2021, the Coast 
Guard published a notice of proposed rulemaking (NPRM) titled ``Safety 
Zone; Ohio River, Newburgh, IN'' docket number USCG-2021-0451 (86 FR 
35242). There we stated why we issued the NPRM, and invited comments on 
our proposed regulatory action related to this fireworks display. 
During the comment period that ended August 2, 2021, we received 1 
comment.
    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 September 4, 2021 to 
protect the public from the potential hazards associated with the 
fireworks event 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 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio 
Valley (COTP) has determined that potential hazards associated with the 
fireworks to be used in this September 4, 2021 display will be a safety 
concern for anyone within the area. The purpose of this rule is to 
ensure safety of vessels and the navigable waters in the safety zone 
before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published July 
2, 2021. The comment was from a citizen concerned about environmental 
impact of this firework display. The environmental concerns raised by 
the commenter appear to be in regards to the potential dangers to the 
environment from the fireworks, and not the environmental impact of 
this safety zone. The Coast Guard is not sponsoring or conducting the 
fireworks; we are only establishing a safety zone around the display to 
protect persons and property from hazards associated with the display. 
During the development of this temporary final rule, the Coast Guard 
underwent an environmental review process and determined this safety 
zone fit a categorical exclusion under the National Environmental 
Policy Act as explained in greater detail in paragraph F of this 
document. The Coast Guard duly considered the environmental impacts in 
our decision to authorize the safety zone as part of the decision 
making process. No changes have been made to the final rule regulatory 
text from what was proposed in the NPRM.
    This rule establishes a safety zone from 9:30 p.m. through 10 p.m. 
on September 4, 2021. The safety zone will cover all navigable waters, 
extending the entire width of the Ohio River from MM 777.3 to MM 778.3. 
The duration of the zone is intended to ensure the safety of vessels 
and these navigable waters before, during, and after the scheduled 9:30 
p.m. to 10 p.m. fireworks display. 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

[[Page 46782]]

Office of Management and Budget (OMB).
    This regulatory action determination is based on the size, 
location, and duration of the temporary safety zone. This safety zone 
restricts transit on a one-mile stretch of the Ohio River for thirty 
minutes on one day. Morever, the Coast Guard would issue Broadcast 
Notice to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine 
Safety Information Bulletins (MSIBs) about this safety zone so that 
waterway users may plan accordingly for this short restriction on 
transit, and the rule would allow vessels to request permission to 
enter 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 received no comments from the Small Business 
Administration on this rulemaking. 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 30 minutes that will prohibit entry within a one-
mile stretch of the Ohio River for one day. 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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1., Revision No. 01.2


0
2. Add Sec.  165.T08-0451 to read as follows:


Sec.  165.T08-0451  Safety Zone; Ohio River, Newburgh, IN.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Ohio River between MM 777.3 to MM 778.3 in Newburgh, IN.
    (b) 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 by VHF-FM radio channel 16 or phone at 1-800-253-7465. 
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.
    (c) Enforcement period. This section will be enforced from 9:30 
p.m. through 10 p.m. on September 4, 2021.


[[Page 46783]]


    Dated: August 12, 2021
A.M. Beach,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2021-17892 Filed 8-19-21; 8:45 am]
BILLING CODE 9110-04-P


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