
[Federal Register Volume 84, Number 42 (Monday, March 4, 2019)]
[Rules and Regulations]
[Pages 7288-7290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03832]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0127]
RIN 1625-AA00


Safety Zone; Cumberland River, Kentucky

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 between mile marker 0.0 and mile marker 3.0 of the 
Cumberland River in Smithland, Kentucky. The safety zone is needed to 
protect personnel, vessels, and personal property from potential 
hazards created by vessel wake during a high water event. Entry of 
vessels 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 March 4, 2019 
until March 15, 2019. For the purposes of enforcement, actual notice 
will be used from February 26, 2019 until March 4, 2019. This rule will 
be enforced from February 26, 2019 to March 15, 2019, unless the lower 
gauge at Smithland Lock and Dam falls below 50 feet, in which case the 
enforcement of this rule will be terminated.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0127 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 MST2 Dylan Caikowski, Marine Safety Unit Paducah, U.S. 
Coast Guard; telephone 270-442-1621 ext. 2120, email STL-SMB-MSUPaducah-WWM@uscg.mil.

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. We must 
establish this emergency safety zone by February 26, 2019 to ensure the 
safety of residents and the protection of personal property near the 
riverfront in Smithland, Kentucky during a high water event.
    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 delaying the 
effective period will compromise the safety of residents, vessels, and 
personal property near the riverfront of Smithland, Kentucky during a 
high water event.

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 
a safety zone is needed to protect personnel, vessels, and personal 
property from potential hazards created by vessel wake during a high 
water event.

IV. Discussion of the Rule

    This rule establishes a safety zone from February 26, 2019 to March 
15, 2019 or when the lower gauge at Smithland Lock and Dam falls below 
50 feet, whichever occurs first. The safety zone will cover all 
navigable waters between mile marker 0.0 and mile marker 3.0 of the 
Cumberland River in Smithland, Kentucky. The duration of the zone is 
intended to protect personnel, vessels, and the personal property in 
these navigable waters during the high water event. No vessel or person 
will be permitted to enter the safety zone without obtaining permission 
from the COTP or a designated representative. The COTP or a designated 
representative will inform the public through broadcast notices to 
mariners of any changes in the planned schedule.

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

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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, 
duration, and location of the safety zone. This safety zone will only 
be enforced for 18 days on a three-mile stretch of the Cumberland River 
near Smithland, Kentucky, while the area is experiencing a high water 
event. The enforcement of the zone will be terminated once the lower 
gauge at Smithland Lock and Dam falls below 50 feet, whichever occurs 
first. While entry is prohibited, vessels may request permission from 
the COTP or a designated representative 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 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 
temporary 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 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 and Commandant Instruction M16475.1D, 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 that will cover all navigable waters between 
mile marker 0.0 and mile marker 3.0 of the Cumberland River in 
Smithland, Kentucky. The safety zone is intended to protect personnel, 
vessels, and personal property in these navigable waters during a high 
water event. 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 supporting 
this determination is 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 record 
keeping 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; 46 U.S.C. 70051; 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.T08-0127 to read as follows:


Sec.  165.T08-0127  Safety Zone; Cumberland River, Smithland, KY.

    (a) Location. The safety zone will encompass all waters of the 
Cumberland River between mile marker 0.0 and mile marker 3.0.
    (b) Effective dates. This section is effective without actual 
notice from March 4, 2019 until March 15, 2019. For the purposes of 
enforcement, actual notice will be used from February 26, 2019 until 
March 4, 2019.

[[Page 7290]]

    (c) Period of enforcement. This section will be enforced from 
February 26, 2019 to March 15, 2019, unless the lower gauge at 
Smithland Lock and Dam falls below 50 feet, in which case the 
enforcement of this rule will be terminated.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this safety zone is prohibited 
unless authorized by the Captain of the Port Sector Ohio Valley (COTP) 
or a designated representative.
    (2) Persons or vessels desiring entry to or passage through the 
safety zone must request permission from the COTP or a designated 
representative. They may be contacted on VHF-FM channel 16 or by 
telephone at 502-779-5400.
    (3) If permission is granted, all persons and vessels shall comply 
with the instructions of the COTP or designated representative.
    (e) Informational broadcasts. The COTP or a designated 
representative will inform the public through broadcast notices to 
mariners of any changes in the planned schedule.

    Dated: February 26, 2019.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2019-03832 Filed 3-1-19; 8:45 am]
 BILLING CODE 9110-04-P


