[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Rules and Regulations]
[Pages 60337-60339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24411]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0530]
RIN 1625-AA00


Safety Zone; Ohio River, Miles 103.0 to 105.0, Moundsville, 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 103.0 to Mile 105.0. 
This action is necessary to protect persons, vessels, and the marine 
environment from potential hazards associated with power line work 
across the river. Entry of persons or vessels into this zone is 
prohibited unless authorized by the Captain of the Port Marine Safety 
Unit Pittsburgh or a designated representative.

DATES: This rule is effective from November 11, 2019 through December 
11, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2019-0530 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 Trevor VanNatta, Marine Safety Unit 
Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email 
Trevor.J.VanNatta@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Marine Safety Unit Pittsburgh
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)(3)(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. This 
safety zone must be established by November 11, 2019 and we lack 
sufficient time to provide a reasonable comment period and then 
consider those comments before issuing this rule. The NPRM process 
would delay the establishment of the safety zone until after the date 
of the power line work and compromise public safety.
    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 this rule would be 
contrary to the public interest because immediate action is necessary 
to respond to the potential safety hazards associated with power line 
work, which could pose a risk to the operation and waterways users if 
the normal vessel traffic were to interfere with the work. Possible 
hazards include risks of injury or death from near or actual contact 
among working vessels and mariners traversing through the safety zone.

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 Marine 
Safety Unit Pittsburgh (COTP) has determined that potential hazards 
associated with power line pulls across the Ohio River will be a safety 
hazard for anyone within a two mile stretch of the Ohio River. The rule 
is needed to protect people from power line work which could pose a 
risk to the operation and waterways users if the normal vessel traffic 
were to interfere with the work. Possible hazards include risks of 
injury or death from near or actual contact among working vessels and 
mariners traversing through the safety zone.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone that will be enforced 
from 7 a.m. through 5:30 p.m. from November 11, 2019 through December 
11, 2019. The safety zone will cover all navigable waters of the Ohio 
River, from mile 103.0 to mile 105.0. The duration of the zone is 
intended to protect persons, vessels, and the marine environment on 
these navigable waters before, during, and after the power line pulls. 
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 assigned to units under the operational control 
of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking 
entry into this 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 (412) 221-0807. Persons and vessels permitted to 
enter this safety zone must transit at their slowest safe speed and 
comply with all lawful instructions of the COTP or a designated 
representative. Breaks in the power line work will occur during the 
enforcement periods, which will allow vessels to pass through the 
safety zone. The COTP or a designated representative will inform the 
public of the enforcement period for the safety zone as well as any 
changes in the schedule through Broadcast Notices to Mariners (BNMs), 
Local Notices to Mariners (LNMs), 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. 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, 
duration, and location of the safety zone. This rule will impact a two 
mile stretch of the Ohio River from 7 a.m. through 5:30 p.m. daily from 
November 11, 2019

[[Page 60338]]

through December 11, 2019. Breaks in the power line work will occur 
during the enforcement periods, which will allow for vessels to pass 
through the safety zone. Moreover, the Coast Guard will issue Local 
Notices to Mariners (LNMs), Marine Safety Information Bulletins 
(MSIBs), and BNMs via VHF-FM marine channel 16 about the zones and the 
rule allows vessels to seek permission from the COTP or a designated 
representative to enter the zones.

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 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 temporary safety zone lasting ten and 
a half hours on each day that will prohibit entry on a two mile stretch 
of the Ohio River. It is categorically excluded from further review 
under paragraph L60 (a) in Table 3-1 of U.S. Coast Guard Environmental 
Planning Implementing Procedures 5090.1. 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 
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. 0170.1.


0
2. Add Sec.  165.T08-0530 to read as follows:


Sec.  165.T08-0530  Safety Zone; Ohio River, miles 103.0 to 105.0, 
Moundsville, WV.

    (a) Location. The following area is a temporary safety zone: All 
navigable waters of the Ohio River from mile 103.0 to mile 105.0.
    (b) Effective period. This section is effective from November 11, 
2019 through December 11, 2019.
    (c) Enforcement period. This section will be enforced from 7 a.m. 
through 5:30 p.m. daily. Breaks in the power line work will occur 
during the enforcement periods, which will allow vessels to pass 
through the safety zone. The Captain of the Port Marine Safety Unit 
Pittsburgh (COTP) or a designated representative will provide notice of 
breaks as appropriate under paragraph (e) of this section.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into this zone is prohibited unless authorized by 
the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a 
designated representative. A

[[Page 60339]]

``designated representative'' is a commissioned, warrant, or petty 
officer of the U.S. Coast Guard assigned to units under the operational 
control of USCG Marine Safety Unit Pittsburgh.
    (2) Persons and vessels seeking entry into this 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 (412) 221-
0807.
    (3) Persons and vessels permitted to enter this safety zone must 
transit at their slowest safe speed and comply with all lawful 
instructions of the COTP or a designated representative.
    (e) Informational broadcasts. The COTP or a designated 
representative will inform the public of the enforcement period for the 
safety zone as well as any changes in the schedule through Broadcast 
Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or 
Marine Safety Information Bulletins (MSIBs) as appropriate.

A.W. Demo,
Commander, U.S. Coast Guard, Captain of the Port Marine Safety Unit 
Pittsburgh.
[FR Doc. 2019-24411 Filed 11-7-19; 8:45 am]
BILLING CODE 9110-04-P


