Rule2023-10766
Safety Zone; Ohio River, Cincinnati, OH
Primary source
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Published
May 19, 2023
Effective
May 19, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is extending the duration of a temporary safety zone for all navigable waters of the Ohio River from mile marker (MM) 487.0 to MM 489.0. This action is necessary to provide for the safety of personnel, vessels, and the marine environment from potential hazards created by Duke Energy's Static Wire Crossing operation taking place on the Ohio River from MM 487.0 to MM 489.0. Entry of vessel or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Sector Ohio Valley or a designated representative.
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 32106-32108]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10766]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0216]
RIN 1625-AA00
Safety Zone; Ohio River, Cincinnati, OH
AGENCY: Coast Guard, Department of Homeland Security (DHS).
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is extending the duration of a temporary
safety zone for all navigable waters of the Ohio River from mile marker
(MM) 487.0 to MM 489.0. This action is necessary to provide for the
safety of personnel, vessels, and the marine environment from potential
hazards created by Duke Energy's Static Wire Crossing operation taking
place on the Ohio River from MM 487.0 to MM 489.0. Entry of vessel or
persons into this zone is prohibited unless specifically authorized by
the Captain of the Port, Sector Ohio Valley or a designated
representative.
DATES: This rule is effective without actual notice from May 19, 2023,
through May 19, 2023. For the purposes of enforcement, actual notice
will be used from May 15, 2023, until May 19, 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-
2023-0216 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 Thomas Harp, MSD Cincinnati, U.S. Coast
Guard; telephone number 513-921-9033, email <a href="/cdn-cgi/l/email-protection#34605c5b5955471a781a7c55464474414757531a595d58"><span class="__cf_email__" data-cfemail="86d2eee9ebe7f5a8caa8cee7f4f6c6f3f5e5e1a8ebefea">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port
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 May 1, 2023, the Coast Guard issued a temporary final rule
establishing a safety zone on all waters of the Ohio River from MM
487.0 to 489.0 to protect persons, vessels, and the marine environment
from potential hazards created by Duke Energy's Static Wire Crossing
operation (88 FR 28408, May 4, 2023). The original rule was effective
through May 15, 2023. However, additional time is needed to conduct the
static wire crossing, and, as a result, the Coast Guard needs to extend
the safety zone through May 19, 2023. 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
extension because it would be impracticable and contrary to the public
interest. The Coast Guard was unable to publish an NPRM and hold a
reasonable comment period for this rulemaking because it is
impracticable due to the emergent nature of the continuing wire
crossing operation and required publication of this extension.
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 immediate action is necessary to protect persons and property
from the dangers associated with the static wire crossing 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 Sector Ohio Valley (COTP) has determined
that potential hazards associated with the Duke Energy's Static Wire
Crossing operation will be a safety concern for all navigable waters on
the Ohio River from MM 487.0 to 489.0. This rule is needed to ensure
the safety of life and vessels on these navigable waters.
IV. Discussion of the Rule
This rule extends the effective dates of an established safety
zone, originally established on May 1, 2023, and effective through May
15, 2023, through May 19, 2023. The safety zone includes all navigable
waters of the Ohio River between MM 487.0 to 489.0. The extended
duration of the zone is intended to protect personnel, vessels, and the
maritime environment in these navigable waters while static wire
crossing operations are conducted.. No vessel or persons will be
permitted to enter the safety zone without obtaining permission from
the COTP or a designated representative. Vessels may contact Sector
Ohio Valley Command Center on VHF-FM Channel 16 or by telephone at 1-
800-253-7465. Person and vessel permitted to enter this regulated area
must transit at their slowest safe speed and comply with all lawful
directions issued by the COTP or the 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
[[Page 32107]]
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 limited duration of the safety zone. This zone will be in
place on a two mile stretch of the Ohio River between the hours of 7
a.m. through 5 p.m. through May 19, 2023, or until the work is
completed, whichever is sooner. The Coast Guard will issue a Local
Notice to Mariners via VHF-FM marine channel 16 about the temporary
safety zone. This rule allows vessels to seek permission from the COTP
or a designated representative to enter the safety 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 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 for 30 days that will prohibit entry within certain
navigable waters of the Chincoteague Bay. 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.
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.T08-0216 to read as follows:
Sec. 165.T08-0216 Safety Zone; Ohio River, Cincinnati, OH.
(a) Location. All navigable waters of the Ohio River between mile
marker (MM) 487.0 to MM 489.0, in Finney, OH.
(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) In accordance with the general regulations in
Sec. 165.23 of this part, entry into this zone is
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prohibited unless specifically authorized by the COTP or a designated
representative. Persons or vessels desiring to enter into or pass
through the zone must request permission from the COTP or a designated
representative. They may be contacted on VHF-FM radio channel 16 or
phone at 1-800-253-4765.
(2) Persons and vessels permitted to enter the safety zone listed
in paragraph (a) of this section must transit at the slowest safe speed
and comply with all lawful directions issued by the COTP or a
designated representative.
(d) Enforcement period. This section will be enforced May 1, 2023,
through May 19, 2023, unless an earlier end is announced by broadcast
notice to mariners.
Dated: May 15, 2023.
H.R. Mattern,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2023-10766 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.
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