
[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71697-71699]
From the Federal Register Online via the Government Printing 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 
Kevin.E.Biami@uscg.mil. 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]
BILLING CODE 9110-04-P


