[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]                         

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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.

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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]

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