[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71697-71699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29187]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2012-0971]
RIN 1625-AA08
Safety Zone; Overhead Cable Replacement, Maumee River, Toledo, OH
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary Safety Zone on the
waters of Maumee River, Toledo, Ohio, from 8:30 a.m. on November 27,
2012 until 6:30 p.m. on December 7, 2012. This safety zone will
encompass all waters of Maumee River starting from the CSX Railroad
Bridge at River Mile Marker 1.07 and ending 700 feet downriver from the
CSX Railroad Bridge. This temporary Safety Zone is necessary to protect
persons operating in the area.
DATES: This temporary final rule is effective December 4, 2012. This
rule has been enforced with actual notice since November 27, 2012.
ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2012-0971. To view documents mentioned in this preamble as being
available in the docket, go http://www.regulations.gov, type the docket
number in the ``SEARCH'' box and click ``SEARCH.'' You may visit the
Docket Management Facility, Department of Transportation, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC
20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email MST1 Kevin Biami, Marine Safety Unit
Toledo, Coast Guard; telephone (419) 418-6008, email
[email protected]. If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
A. Regulatory History and Information
On October 18, 2012, the Coast Guard established a temporary final
rule (TFR) entitled Safety Zone; Overhead Cable Replacement, Maumee
River, Toledo, OH (docket number USCG-2012-0948) in support of the
replacement of electrical cables suspended over the Maumee River. To
coincide with the expected schedule of the cable replacement project,
that TFR was effective from 9:30 a.m. on October 23, 2012 until 3 p.m.
on October 26, 2012. However, due to an equipment failure, an
unforeseen breakage of one of the electrical cables and inclement
weather conditions, the contractor had requested an extension of the
safety zone, and a subsequent TFR was established on October 26, 2012,
extending the safety zone from 9:30 a.m. on October 27, 2012 until 3
p.m. on November 2, 2012. Due to the effects of Hurricane Sandy, the
contractor was unable to complete the operation and has requested that
a new safety zone be established from 8:30 a.m. on November 27, 2012
until 6:30 p.m. on December 7, 2012.
The Coast Guard is issuing this temporary final 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 doing so would be impracticable and
contrary to the public interest. The final details for this stage of
the operation were not known to the Coast Guard until there was
insufficient time remaining before the operation to publish an NPRM.
Thus, delaying the effective date of this rule to wait for a comment
period to run would be both impracticable and contrary to the public
interest because it would inhibit the Coast Guard's ability to protect
the public from the hazards associated with this Coast Guard operation.
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. Waiting for a 30 day effective
period to run is impracticable and
[[Page 71698]]
contrary to the public interest for the same reasons discussed in the
preceding paragraph.
B. Basis and Purpose
The legal basis for the rule is the Coast Guard's authority to
establish regulated navigation areas and limited access areas: 33
U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33
CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064;
Department of Homeland Security Delegation No. 0170.1.
First Energy/Toledo Edison is replacing three overhead power cables
that span across the Maumee River near the CSX Railroad Bridge on the
Maumee River. All work will be near the CSX Railroad Bridge on the
downriver side. The Captain of the Port Detroit has determined that
this stage of the operation continues to pose certain public hazards,
including possible entanglement of the power lines in a vessel's
propellers if the power lines are dropped onto the Maumee River during
the operation.
C. Discussion of Rule
With the aforementioned hazards in mind, the Captain of the Port
Detroit has determined that a safety zone is necessary to ensure the
safety of participants and vessels during the operation. The temporary
safety zone is established herein will be enforced from 8:30 a.m. on
November 27, 2012 until 6:30 p.m. on December 7, 2012, and will be
enforced from 8:30 a.m. until 6:30 p.m. on each day of this period.
Entry into, transiting, or anchoring within the safety zone is
prohibited unless authorized by the Captain of the Port, Sector Detroit
or his designated on scene representative. The Captain of the Port,
Sector Detroit or his designated on scene representative may be
contacted via VHF Channel 16. All persons and vessels shall comply with
the instructions of the Coast Guard Captain of the Port, designated on
scene patrol personnel, or operation personnel.
D. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on these statutes or executive orders.
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. The Office of
Management and Budget has not reviewed it under these Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS). We conclude that this rule is
not a significant regulatory action because we anticipate that it will
have minimal impact on the economy, will not interfere with other
agencies, will not adversely alter the budget of any grant or loan
recipients, and will not raise any novel legal or policy issues. The
safety zone created by this rule will be relatively small and enforced
for relatively short time. Although the requesting organization, First
Energy/Toledo Edison, is requesting a ten hour block each day for up to
eleven days, First Energy/Toledo Edison estimates that the safety zone
will only need to be active for forty minutes to three hours on each
day. Also, the safety zone is designed to minimize its impact on
navigable waters. Thus, restrictions on vessel movement within that
particular area are expected to be minimal. Under certain conditions,
moreover, vessels may still transit through the safety zone when
permitted by the Captain of the Port.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 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. This rule will affect the following entities, some of
which may be small entities: The owners or operators of vessels
intending to transit through the Maumee River, OH between 8:30 a.m. and
6:30 p.m. on November 27th, 28th, 29th, 30th, and December 1st, 2nd,
3rd, 4th, 5th, 6th and 7th 2012.
This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: This
rule is expected to be in effect for only approximately forty minutes
to three hours each day. In the event that this temporary safety zone
affects shipping, commercial vessels may request permission from the
Captain of the Port, Sector Detroit to transit through the safety zone.
The Coast Guard will give notice to the public via a Broadcast Notice
to Mariners that the regulation is in effect.
3. Assistance for Small Entities
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 so that they can better evaluate
its effects on them. If this 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 above.
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.
4. 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).
5. Federalism
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 determined
that this rule does not have implications for federalism.
6. 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
[[Page 71699]]
will not result in such an expenditure, we do discuss the effects of
this rule elsewhere in this preamble.
7. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
8. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
9. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
10. Indian Tribal Governments
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.
11. Energy Effects
This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.
12. Technical Standards
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
13. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a
determination 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 and, therefore
it is categorically excluded from further review under paragraph
(34)(g) of Figure 2-1 of the Commandant Instruction. An environmental
analysis checklist supporting this determination and a Categorical
Exclusion Determination are available in the docket where indicated
under ADDRESSES. We seek any comments or information that may lead to
the discovery of a significant environmental impact from this rule.
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; 46 U.S.C. Chapters 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.T09-0971 as follows:
Sec. 165.T09-0971 Safety Zone; Overhead Cable Replacement, Maumee
River, Toledo, OH.
(a) Location. The following area is a temporary safety zone: all
U.S. navigable waters of the Maumee River, Toledo, OH, starting from
the CSX Railroad Bridge at River Mile Marker 1.07 and ending 700 feet
down river from the CSX Railroad Bridge.
(b) Effective and enforcement period. This regulation will be
enforced from 8:30 a.m. on November 27, 2012 until 6:30 p.m. on
December 7, 2012. This regulation will be enforced from 8:30 a.m. until
6:30 p.m. on each day of this period.
(c) Definitions. The following definitions apply to this section:
(1) ``On-scene Representative'' means any Coast Guard Commissioned,
warrant, or petty officer designated by the Captain of the Port Detroit
to monitor a safety zone, permit entry into the zone, give legally
enforceable orders to persons or vessels within the zones, and take
other actions authorized by the Captain of the Port.
(2) ``Public vessel'' means vessels owned, chartered, or operated
by the United States, or by a State or political subdivision thereof.
(d) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into, transiting, or anchoring within
this safety zone is prohibited unless authorized by the Captain of the
Port Detroit, or his designated representative.
(2) This safety zone is closed to all vessel traffic, excepted as
may be permitted by the Captain of the Port Detroit or his designated
representative. All persons and vessels must comply with the
instructions of the Coast Guard Captain of the Port or his designated
representative. Upon being hailed by the U.S. Coast Guard by siren,
radio, flashing light or other means, the operator of a vessel shall
proceed as directed.
(3) All vessels must obtain permission from the Captain of the Port
or his designated representative to enter, move within, or exit the
safety zone established in this section when this safety zone is
enforced. Vessels and persons granted permission to enter the safety
zone must obey all lawful orders or directions of the Captain of the
Port or a designated representative. While within a safety zone, all
vessels must operate at the minimum speed necessary to maintain a safe
course.
(e) Exemption. Public vessels, as defined in paragraph (b) of this
section, are exempt from the requirements in this section.
(f) Waiver. For any vessel, the Captain of the Port Detroit or his
designated representative may waive any of the requirements of this
section, upon finding that operational conditions or other
circumstances are such that application of this section is unnecessary
or impractical for the purposes of public or environmental safety.
(g) Notification. The Captain of the Port Detroit will notify the
public that the safety zones in this section are or will be enforced by
all appropriate means to the affected segments of the public including
publication in the Federal Register as practicable, in accordance with
33 CFR 165.7(a). Such means of notification may also include, but are
not limited to Broadcast Notice to Mariners or Local Notice to
Mariners. The Captain of the Port will issue a Broadcast Notice to
Mariners notifying the public when enforcement of the safety zone is
cancelled.
Dated: November 21, 2012.
J.E. Ogden,
Captain, U.S. Coast Guard, Captain of the Port, Sector Detroit.
[FR Doc. 2012-29187 Filed 12-3-12; 8:45 am]
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