[Federal Register Volume 78, Number 16 (Thursday, January 24, 2013)]
[Rules and Regulations]
[Pages 5137-5140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01412]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1071]
RIN 1625-AA00


Safety Zone; Monongahela River, Charleroi, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all waters between mile 40.5 and mile 42.5 on the Monongahela River. 
The safety zone is needed to protect construction workers and vessels 
transiting the area from the hazards associated with demolition 
operation being conducted on a guard wall upstream of Lock and Dam 4 
near Charleroi, PA. Entry into, movement within, and departure from 
this Coast Guard Safety Zone, while it is activated and enforced, is 
prohibited, unless authorized by the Captain of the Port Pittsburgh or 
a designated representative.

DATES: This rule is effective in the CFR on January 24, 2013 through 
5:00 p.m. on March 1, 2013. This rule is effective with actual notice 
for purposes of enforcement at 7:00 a.m. on January 9, 2013. This rule 
will remain in effect through 5:00 p.m. on March 1, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-1071. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket

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number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open Docket 
Folder on the line associated with this rulemaking. You may also visit 
the Docket Management Facility in Room W12-140 on the ground floor of 
the Department of Transportation West Building, 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 rule, 
call or email MSTC Chris Blank, Marine Safety Unit Pittsburgh, U.S. 
Coast Guard; telephone (412) 644-5808 ext. 2108, email 
[email protected]. If you have questions on viewing or 
submitting material to 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

    The Coast Guard is issuing this 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. The Coast Guard received notice for this 
event on January 3, 2013 which does not allow for the NPRM process. 
After full review of the event information and location, the Coast 
Guard determined that a safety zone is necessary. Publishing a NPRM 
would be impracticable and would unnecessarily delay the immediate 
action that is needed to protect the public from the possible hazards 
associated with demolition operation being conducted on a guard wall 
upstream of Lock and Dam 4 that will occur in Charleroi, PA. Delaying 
the demolition operation to provide a notice and comment period before 
effecting this safety zone is also impracticable, as it would impede 
the flow of commercial river traffic and interfere with contractual 
obligations based on the demolition operations.
    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. Providing 30 days notice would 
unnecessarily delay the effective date, be impracticable, and contrary 
to public interest because immediate action is needed to protect the 
public from the possible hazards associated with demolition operation 
being conducted on a guard wall upstream of Lock and Dam in Charleroi, 
PA.

B. Basis and Purpose

    The Joseph B. Fay Company has been contracted by the Army Corps of 
Engineers to conduct demolition operations that include four to seven 
explosive blasts between January 9, 2013 and March 1, 2013 to remove an 
1100 foot section of guard wall upstream of Lock and Dam 4 in 
Charleroi, PA. This event poses hazardous conditions on the river and 
additional safety measures to ensure vessel and mariner safety are 
required in the form of a safety zone.
    The legal basis and authorities for this rule are found in 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, and 160.5; Public Law 107-295, 116 Stat. 
2064; and Department of Homeland Security Delegation No. 0170.1, which 
collectively authorize the Coast Guard to establish and define 
regulatory safety zones.

C. Discussion of the Final Rule

    The Coast Guard is establishing a temporary safety zone for all 
waters between mile 40.5 and 42.5 on the Monongahela River. Vessels 
shall not enter into, depart from, or move within this safety zone 
without permission from the Captain of the Port Pittsburgh or her 
designated representative. 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 on VHF-FM Channel 13 or 16, or through Coast Guard Sector 
Ohio Valley at (800) 253-7465. This rule will become effective at 7:00 
a.m. on January 9, 2013 and remain in effect until 5 p.m. on March 1, 
2013, but will only be enforced during intermittent periods that will 
be announced by broadcast notices to mariners with as much advanced 
notice as possible. Due to the unpredictability of the Monongahela 
River, weather and river forecasts will be used to determine the most 
suitable conditions for demolition operations. Advanced notice will be 
given to the maximum extent possible, but despite best efforts, the 
safety zone may be established with minimal notice when ideal work 
conditions are identified. The Captain of the Port Pittsburgh will 
inform the public and maritime industry through broadcast notice to 
mariners of the enforcement periods and changes to the safety zone and 
its enforcement.

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 and 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 Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. Although this rule will 
be effective from January 9, 2013 until March 1, 2013, unless 
demolition operation are completed sooner, it will only be enforced for 
a limited time periods during days scheduled for demolition operations. 
By enforcing this safety zone for limited periods of time throughout 
the effective period, marine traffic will not be significantly 
impacted. Entry into or passage through the safety zone will be 
considered on a case-by-case basis by the Captain of the Port 
Pittsburgh or designated representative. Notification of, and changes 
to, the enforcement period will be made via broadcast notice to 
mariners.

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 
that portion of the waterways between mile 40.5 and mile 42.5 on the 
Monongahela River

[[Page 5139]]

during the enforcement period. This safety zone will not have a 
significant economic impact on a substantial number of small entities 
because the enforcement periods will be for a limited duration, less 
than two hours, intermittently throughout the effective period.

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. If the 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. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
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 establishing a safety zone. This rule 
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. 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.T08-1071 to read as follows:


Sec.  165.T08-1071  Safety Zone; Monongahela River, Charleroi, PA.

    (a) Location. The following area is a safety zone: All waters from 
mile 40.5 and 42.5 on the Monongahela River.
    (b) Effective date. This rule is effective from 7 a.m. on January 
9, 2013 until 5 p.m. on March 1, 2013.
    (c) Periods of enforcement. This rule will be enforced 
intermittently during the effective period when demolition operations 
are being conducted on a guard wall upstream of Lock and Dam 4. The 
timing of demolition operations is dependent on contractor 
availability, river forecast, and observed weather. The Captain of the 
Port Pittsburgh will inform the public of the enforcement

[[Page 5140]]

periods and any changes through broadcast notice to mariners.
    (d) 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 on 
VHF-FM Channel 13 or 16, or 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: January 8, 2013.
Lindsay N. Weaver,
Commander, U.S. Coast Guard, Captain of the Port, Pittsburgh.
[FR Doc. 2013-01412 Filed 1-23-13; 8:45 am]
BILLING CODE 9110-04-P