Safety Zone; Barge Big Digger and Tugs Kimberly Anne and Andrew J Operating in the Straits of Mackinac, MI, 46968-46970 [2021-17337]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
[Rules and Regulations]
[Pages 46968-46970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17337]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2021-0338]
RIN 1625-AA00


Safety Zone; Barge Big Digger and Tugs Kimberly Anne and Andrew J 
Operating in the Straits of Mackinac, MI

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comment.

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SUMMARY: This rule amends an earlier safety zone titled ``Safety Zone; 
Tugs Kimberly Anne and Westwind and Barge Big Digger Operating in the 
Straits of Mackinac, MI'' issued on May 26, 2021, because one of the 
tug vessels named in the earlier rule has changed. The size, duration, 
and purpose of the safety zone remains the same. This rule continues to 
restrict entry into a 500-yard radius around two tugs and a barge 
engaged in pipeline-related work in the Straits of Mackinac. The safety 
zone is needed to protect personnel, vessels, and the marine 
environment from the potential hazards created by the work, inspection, 
diving, and surveying of pipelines in the Straits of Mackinac.

DATES: This interim rule is effective without actual notice from August 
23, 2021 through October 15, 2021. Comments and related material must 
be received by the Coast Guard on or before September 22, 2021.

ADDRESSES: You may submit comments identified by docket number USCG-
2021-0338 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Deaven Palenzuela, Sector Sault Sainte Marie Waterways 
Management Division, U.S. Coast Guard at (906) 635-3223 or email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Abbreviations

DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On May 26, 2021, the Coast Guard published a temporary interim 
rule, at 86 FR 28268, that established a temporary safety zone around 
the tug vessels KIMBERLY ANNE and WESTWIND, as well as barge BIG 
DIGGER. This safety zone is needed to protect personnel, vessels, and 
the marine environment from the potential hazards created by the work, 
inspection, diving, and surveying of pipelines in the Straits of 
Mackinac. In July 2021, the construction company notified the Coast 
Guard that it needed to switch out the tug vessel WESTWIND for the tug 
vessel ANDREW J. This interim rule amends the existing safety zone to 
remove the name of the tug vessel WESTWIND and replace it with the name 
of the tug ANDREW J.
    The Coast Guard is issuing this temporary interim rule without 
undergoing notice and comment procedures pursuant to 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 public 
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 unnecessary. The pipeline work is ongoing and the 
barge is on site, and the unexpected switch of attending tug vessel did 
not allow time for meaningful public comment before making the change. 
Moreover, the change to the specific tug vessel attending the barge BIG 
DIGGER does not change the scope, timing, or other details of the 
ongoing work, and is therefore of little interest to the public.
    Because this safety zone will be in place until October 15, 
however, there is time to provide a 30-day public comment period after 
the effective date of this rule. The Coast Guard will consider all 
public comments received, and may change the rule in response to 
comments if doing so is appropriate.
    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. For the same reasons discussed 
above, delaying the effective date of this rule would be impracticable 
and unnecessary.
    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 Sault Sainte 
Marie (COTP) has determined that potential hazards created by the work, 
inspection, diving, and surveying of underwater infrastructure in the 
Straits of Mackinac that started June 1, 2021, will be a safety concern 
for anyone within a 500-yard radius of the tugs and barge. This rule is 
needed to protect personnel, vessels, and the marine environment in the 
navigable waters within the safety zone while the operation is 
conducted.

III. Discussion of the Rule

    This rule revises an existing safety zone that is anticipated to 
continue until October 15, 2021. The safety zone continues to cover all 
navigable waters within 500 yards of the barge BIG DIGGER and its 
attending tugs, which are being used to work, inspect, dive, and survey 
pipelines in the Straits of Mackinac. The duration of the zone is 
intended to protect personnel, vessels, and the marine environment in 
these navigable waters while the operation is conducted. No vessel or 
person will be permitted to enter the safety zone without obtaining 
permission from the COTP or a designated representative. The only 
change this rule makes to the existing safety zone is a change to the 
specific tug named.

IV. 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 protesters.

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

[[Page 46969]]

necessary, to select regulatory approaches that maximize net benefits. 
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).
    This regulatory action determination is based on the size and 
location of the safety zone. Vessel traffic will be able to safely 
transit around this safety zone which would impact a small area of the 
Straits of Mackinac. Moreover, the Coast Guard will issue a 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 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 
call or email 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.

D. 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.

E. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132 
(Federalism) if it has a substantial direct effect on 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 Executive Order 13132 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.

F. Unfunded Mandates

    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. Although this rule will not result 
in such expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01, Rev. 1, associated implementing 
instructions, 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 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 safety zone that will prohibit 
entry within 500 yards of tugs and barges used to used to work, 
inspect, dive, and survey pipelines in the Straits of Mackinac. It is 
categorically excluded from further review under paragraph L[60(a)] of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, call or email the person in 
the FOR FURTHER INFORMATION CONTACT section of this document for 
alternate instructions.
    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. For more about privacy and submissions in response to this 
document, see DHS's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020).
    To view documents mentioned as being available in the docket, find 
the docket as described in the previous paragraph, and then select 
``Supporting & Related Material'' in the Document Type column. Public 
comments will also be placed in our online docket and can be viewed by 
following instructions on the https://www.regulations.gov Frequently 
Asked Questions web page. We review all comments received, but we will 
only post comments that

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address the topic of the rule. We may choose not to post off-topic, 
inappropriate, or duplicate comments that we receive.

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, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1, 
Revision No. 01.2.


0
2. Amend Sec.  165.T09-0338 by revising the section heading and 
paragraph (a) to read as follows:


Sec.  165.T09-0338  Safety Zone; Tugs Kimberly Anne and Andrew J and 
Barge Big Digger operating in the Straits of Mackinac, MI.

    (a) Location. The following areas are safety zones: All navigable 
water within 500 yards of the Tugs Kimberly Anne and Andrew J and Barge 
Big Digger while conducting work, inspection, diving, and surveying of 
pipelines in the Straits of Mackinac.
* * * * *

    Dated: August 9, 2021.
A.R. Jones,
Captain, U.S. Coast Guard, Captain of the Port Sault Sainte Marie.
[FR Doc. 2021-17337 Filed 8-20-21; 8:45 am]
BILLING CODE 9110-04-P