[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Rules and Regulations]
[Pages 11644-11645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05385]



[[Page 11644]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0075]
RIN 1625-AA00


Safety Zone; Ohio River, Letart, WV

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 from mile marker (MM) 236 to MM 
239. The safety zone is needed to provide for the safety of life and 
property due to severe out draft from high water that have rendered the 
Ohio River conditions to be hazardous to navigation. Entry of vessels 
or persons into this zone is prohibited unless specifically authorized 
by the Captain of the Port Sector Ohio Valley (COTP) or designated 
representative.

DATES: This rule is effective without actual notice from March 16, 2018 
until March 30, 2018. For the purposes of enforcement, actual notice 
will be used from February 23, 2018 until March 16, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0075 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Caitlin Furman, Marine Safety Unit 
Huntington, U.S. Coast Guard; telephone 304-733-0198, email [email protected].

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

    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. On February 22, 
2018, the United States Coast Guard was informed that the severe out 
draft on the Ohio River by Racine Lock and Dam is expected to rise 
significantly over the next couple of days and will continue to result 
in hazardous river conditions near the Letart, WV area. This severe out 
draft has resulted in commercial mariners not being able to maintain 
safe control of their tow as they begin their northbound or southbound 
approach into the Letart, WV area between mile marker (MM) 236 and MM 
239 on the Ohio River. We must establish this safety zone by February 
23, 2018 and lack sufficient time to provide a reasonable comment 
period and then consider those comments before issuing this rule.
    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. It would be contrary to the public 
interest to delay this rule to provide a full 30 days' notice as the 
hazardous river conditions are expected to take place daily from 
February 23, 2018 through March 30, 2018.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Sector Ohio Valley (COTP) has determined 
that potential hazards associated with the current river conditions 
starting immediately 24 hours daily from February 23, 2018 through 
March 30, 2018, there will be a safety concern for anyone within mile 
marker (MM) 236 to MM 239 on the Ohio River, near Letart, West 
Virginia. This rule is needed to protect personnel, vessels, and the 
marine environment in the navigable waters within the safety zone while 
the power line crossing is being conducted.

IV. Discussion of the Rule

    This rule establishes a safety zone for 24 hours daily on February 
23, 2018 through March 30, 2018. The safety zone will cover all 
navigable waters of the Ohio River from mile marker (MM) 236 to MM 239. 
The duration of the zone is intended to protect personnel, vessels, and 
the marine environment in these navigable waters while the power line 
crossing is being conducted. 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 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.

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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. 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), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. Vessel traffic 
will not be able to safely transit around this safety zone which will 
impact a small designated area of the Ohio River from mile marker (MM) 
236 to MM 239 for twenty-four hours daily for 36 days a time of year 
when vessel traffic is normally low. Moreover, the Coast Guard will 
issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about 
the zone and the rule allows vessels to seek 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

[[Page 11645]]

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 
contact 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

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 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 
Management Directive 023-01, which guides 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 only nine and a half hours that will prohibit entry within mile 
marker (MM) 236 to MM 239 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. 01. A Record of 
Environmental Consideration (REC) will be made available in the docket 
where indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact 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:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T08-0075 to read as follows:


Sec.  165.T08-0075  Safety zone; Ohio River, mile marker 236 to mile 
marker 239, Letart, WV.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Ohio River from mile marker 236 to mile marker 239 near 
Letart, West Virginia.
    (b) Enforcement period. This section will be enforced 24 hours 
daily from February 23, 2018 through March 30, 2018.
    (c) 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.
    (d) 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 a 
designated representative.
    (2) To seek permission to enter, contact the COTP or designated 
representative via radio on channel 16.
    (3) All persons and vessels shall comply with the instruction of 
the COTP and designated on-scene personnel.
    (e) Information broadcasts. The COTP or a designated representative 
will inform the public through Broadcast Notices to Mariners, Local 
Notices to Mariners, and/or Safety Marine Information Broadcasts as 
appropriate of the enforcement period for each safety zone as well as 
any changes in the planned and published dates and times of 
enforcement.

    Dated: February 22, 2018.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2018-05385 Filed 3-15-18; 8:45 am]
 BILLING CODE 9110-04-P


