[Federal Register: November 25, 2008 (Volume 73, Number 228)] [Rules and Regulations] [Page 71555-71557] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr25no08-16] ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-1085] RIN 1625-AA00 Safety Zone; Allegheny River, Clinton, PA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. ----------------------------------------------------------------------- SUMMARY: The Coast Guard has established a temporary safety zone extending the entire width of the Allegheny River from mile marker 36.1 to mile marker 36.5. This safety zone is established to protect the general public, marinas, and commercial vessel operators from the hazards associated with the active failure of Lock & Dam 6 (mile marker 36.3). Entry into this zone is prohibited, unless specifically authorized by the Captain of the Port Pittsburgh or a designated representative. DATES: This rule is effective from 1 p.m. on October 30, 2008 until 11:59 p.m. on December 31, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-1085 and are available online by going to http://www.regulations.gov, selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2008-1085 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. They are also available for inspection or copying at two locations: The Docket Management Facility (M-30), U.S. 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, and the U.S. Coast Guard Marine Safety Unit Pittsburgh, 100 Forbes Avenue, Suite 1150, Pittsburgh, PA 15222, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary [[Page 71556]] rule, call Ensign Douglas Kang Marine Safety Unit Pittsburgh, telephone 412-644-5808 ext. 2108. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information 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 immediate action is needed to protect the general public, marinas, and commercial vessel operators from the hazards associated with the active failure of Lock & Dam 6. After an underwater assessment, the Army Corps of Engineers determined that the aforementioned lock and dam is perilously close to catastrophic failure. Such an event could create a navigational hazard to mariners in the form of high water and breakaway debris flowing downriver, and in the form of low pool-water upriver. 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, since immediate action is needed to protect the general public, marinas, and commercial vessel operators from the hazards associated with the active failure of Lock & Dam 6. Background and Purpose The Coast Guard is establishing a temporary safety zone extending the entire width of the Allegheny River from mile marker 36.1 to mile marker 36.5. This safety zone is established to protect the general public, marinas, and commercial vessel operators from the hazards associated with the active failure of Lock & Dam 6 (mile marker 36.3). Discussion of Rule The Coast Guard has established a temporary safety zone extending the entire width of the Allegheny River from mile marker 36.1 to mile marker 36.5. Persons and vessels shall not enter into, depart from, or move within this safety zone unless specifically authorized by the Captain of the Port Pittsburgh or a designated representative. They may be contacted through Coast Guard Sector Ohio Valley at 1-800-253-7465. This rule is effective from 1 p.m. on October 30, 2008 until 11:59 p.m. on December 31, 2008. The Captain of the Port Pittsburgh will inform the public through broadcast notices to mariners of the enforcement period for the safety zone as well as any changes in the planned schedule. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and 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 that Order. This expectation is based on the fact that the impacts on routine navigation are expected to be minimal. Notification to the marine community will be made through broadcast notices to mariners. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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 or anchor in that portion of the Allegheny River from mile marker 36.1 to mile marker 36.5 from 1 p.m. on October 30, 2008 until 11:59 p.m. on December 31, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Although the safety zone will apply to the entire width of the river, traffic will be allowed to pass through the zone with the permission of the Coast Guard. Before the effective period, we will issue maritime advisories widely available to users of the river. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. 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. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 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. [[Page 71557]] Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. 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. 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. 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a ``significant energy action'' under that order because it is not a ``significant regulatory action'' under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 5100.1 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 concluded under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. 0 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. 1226, 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, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 0 2. Add Sec. 165.T08-033 to read as follows: Sec. 165.T08-033 Safety Zone; Allegheny River, Clinton, PA. (a) Location. The following area is a Safety Zone: The waters extending the entire width of the Allegheny River from mile marker 36.1 to mile marker 36.5. (b) Enforcement Period. This rule will be enforced from 1 p.m. on October 30, 2008 until 11:59 p.m. on December 31, 2008. The Captain of the Port Pittsburgh or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the safety zone as well as any changes in the planned schedule. (c) Regulations. (1) In accordance with the general regulations in Sec. 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Pittsburgh. (2) Persons or vessels requiring entry into or passage through a safety zone must request permission from the Captain of the Port Pittsburgh or a designated representative. They may be contacted through Coast Guard Sector Ohio Valley at 1-800-253-7465. (3) All persons and vessels shall comply with the instructions of the Captain of the Port Pittsburgh and designated on-scene U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel includes Commissioned, Warrant, and Petty Officers of the U.S. Coast Guard. Dated: October 30, 2008. S.T. Higman, Lieutenant Commander, U.S. Coast Guard, Acting Captain of the Port Pittsburgh. [FR Doc. E8-27980 Filed 11-24-08; 8:45 am] BILLING CODE 4910-15-P
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