Rule2023-10715
Safety Zone; Kanawha River, Nitro, WV
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 19, 2023
Effective
May 27, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is establishing a safety zone for all navigable waters of the Kanawha River between mile markers 43 and 44. The safety zone is needed to protect personnel, vessels, and the marine environment from the potential hazards created by a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by Captain of the Port Marine Safety Unit Huntington.
Full Text
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<title>Federal Register, Volume 88 Issue 97 (Friday, May 19, 2023)</title>
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[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32110-32112]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10715]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0354]
RIN 1625-AA00
Safety Zone; Kanawha River, Nitro, WV
AGENCY: Coast Guard, Department of Homeland Security (DHS).
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a safety zone for all
navigable waters of the Kanawha River between mile markers 43 and 44.
The safety zone is needed to protect personnel, vessels, and the marine
environment from the potential hazards created by a fireworks display.
Entry of vessels or persons into this zone is prohibited unless
specifically authorized by Captain of the Port Marine Safety Unit
Huntington.
DATES: This rule is effective from 9 p.m. through 10 p.m. on May 27,
2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2023-0354 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 MST1 Chelsea Zimmerman, Marine Safety Unit Huntington,
U.S. Coast Guard; (304) 733-0198, <a href="/cdn-cgi/l/email-protection#fab9929f96899f9bd4b7d4a09397979f88979b94ba8f89999dd4979396"><span class="__cf_email__" data-cfemail="43002b262f3026226d0e6d192a2e2e26312e222d03363020246d2e2a2f">[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 we must establish the safety zone by
May 27, 2023, and lack sufficient time to request public comments and
respond to these comments before the safety zone must be established.
Waiting for a full comment period to run would inhibit the Coast
Guard's ability to keep the public safe from the hazards associated
with a fireworks display and the ability to minimize the impact to
vessel traffic on the navigable waterway.
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 contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with the Nitro Memorial Day Celebration taking place on the Kanawha
River between mile marker 43 and mile marker 44.
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 Ohio Valley (COTP) has determined that
potential hazards associated with Nitro Memorial Day Celebration
starting May 27, 2023, will be a safety concern for anyone on the
Kanawha River from mile marker 43 to mile marker 44. This rule is
needed to protect personnel, vessels, and the marine environment from
potential hazards associated with a fireworks display.
IV. Discussion of the Rule
This rule establishes a safety zone from 9 p.m. through 10 p.m. on
May 27, 2023. The safety zone will cover all navigable waters between
mile markers 43 and 44 on the Kanawha River. The duration of the safety
zone is intended to protect personnel, vessels, and the marine
environment from potential hazards created by a fireworks display.
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 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 Huntington at 304-563-9084. 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 the size,
location, and duration of the safety zone. This safety zone impacts a
1-mile stretch of the Kanawha River for a limited duration of less than
2 hours. Vessel traffic will be informed about the safety zone through
local notices to mariners. Moreover, the Coast Guard will issue
Broadcast Notices to Mariners via VHF-FM marine channel 16 about the
zone and the rule allows vessels to seek permission 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
[[Page 32111]]
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 one hour that will limit access of the Kanawha
River from mile marker 43 to mile marker 44. 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. Add Sec. 165.T08-0354 to read as follows:
Sec. 165.T08-0354 Safety Zone; Kanawha River, Nitro, WV.
(a) Regulated area. The regulations in this section apply to the
following area: all navigable waters of the Kanawha River from mile
marker 43 to mile marker 44 near Nitro City Park, Park Avenue, Nitro,
WV.
(b) Definitions. As used in this section:
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.
Participant means all persons and vessels registered with the event
sponsor as a participants in the race.
(c) Regulations. (1) The Coast Guard may patrol the event area
under the direction of a designated Coast Guard Patrol Commander. The
Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by
the call sign ``PATCOM.''
(2) All persons and vessels not registered with the sponsor as
participants or official patrol vessels are considered spectators. The
``official patrol vessels'' consist of any Coast Guard, state or local
law enforcement, and sponsor provided vessels assigned or approved by
the Commander, Eighth Coast Guard District, to patrol the event.
(3) Spectator vessels desiring to transit the regulated area may do
so only with prior approval of the Patrol Commander and when so
directed by that officer and will be operated at a no wake speed in a
manner which will not endanger participants in the event or any other
craft.
(4) No spectator shall anchor, block, loiter, or impede the through
transit of participants or official patrol vessels in the regulated
area during the enforcement period in paragraph (d) of this section,
unless cleared for entry by or through an official patrol vessel.
(5) The Patrol Commander may forbid and control the movement of all
vessels in the regulated area. When hailed or
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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.
(6) Any spectator vessel may anchor outside the regulated area
specified in paragraph (a) of this section, but may not anchor in,
block, or loiter in a navigable channel.
(7) 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.
(8) To seek permission to enter, contact the COTP or the COTP's
representative by VHF-FM marine radio channel 16 or phone at 1-800-253-
7465. Those in the regulated area must comply with all lawful orders or
directions given to them by the COTP or the designated representative.
(9) 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 period. The safety zone in paragraph (a) of this
section will be enforced from 9 p.m. to 10 p.m. on May 27, 2023.
Dated: May 9, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2023-10715 Filed 5-18-23; 8:45 am]
BILLING CODE 9110-04-P
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</html>Indexed from Federal Register on May 19, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.