[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Rules and Regulations]
[Pages 28488-28490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09652]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0242]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 500-yard radius of a tug and barge in the 
Straits of Mackinac. The safety zone is needed to protect personnel, 
vessels, and the marine environment from potential hazards created by 
the work, inspection, and surveying of underwater infrastructure. Entry 
of vessels or persons into this zone is prohibited unless specifically 
authorized by the Captain of the Port Sault Sainte Marie or their 
designated representative.

DATES: This rule is effective without actual notice from May 13, 2020 
through October 30, 2020. For the purposes of enforcement, actual 
notice will be used from May 4, 2020 through May 13, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0242 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

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

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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

[[Page 28489]]

``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. The final details 
of the specific dates, vessel names, and safety zone distances 
concerning the safety zones were not finalized within a sufficient time 
to allow for notice and a subsequent 30-day comment period before work, 
inspections, and surveying of underwater infrastructure. Delaying this 
rule to allow for a notice and comment period would be impracticable 
because it would inhibit the Coast Guard's ability to protect the 
public from the potential hazards associated with aforementioned 
operation commencing on May 4, 2020.
    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 in 
the preceding paragraph, delaying the effective date of this rule would 
be impracticable because immediate action is needed to respond to the 
potential safety hazards associated with the work, inspections, and 
surveying of underwater infrastructure.

III. Legal Authority and Need for Rule

    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 associated with the 
work, inspection, and surveying of underwater infrastructure in the 
Straits of Mackinac starting May 4, 2020, will be a safety concern for 
anyone within a 500-yard radius of the tug 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.

IV. Discussion of the Rule

    This rule establishes a safety zone from May 4, 2020, to October 
30, 2020. The safety zone will cover all navigable waters within 500 
yards of a tug and barge being used to work, inspect, and survey 
underwater infrastructure 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.

V. 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 protestors.

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 necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. 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), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    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 designated 
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 would allow 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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 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.

E. 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 28490]]

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

F. Environment

    We have analyzed this rule under Department of Homeland Security 
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 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 a 
safety zone that will prohibit entry within 500 yards of a tug and 
barge used to work, inspect, and survey underwater infrastructure 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.

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.


0
2. Add Sec.  165.T09-0242 to read as follows:


Sec.  165.T09-0242  Safety Zone; Tug Kimberly Anne and Barge Big Digger 
operating in the Straits of Mackinac, MI.

    (a) Location. The following areas are safety zones: All navigable 
waters within 500 yards of Tug Kimberly Anne and Barge Big Digger while 
conducting work, inspection, and surveying of underwater infrastructure 
in the Straits of Mackinac.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sault Sainte Marie (COTP) in the enforcement of the 
safety zone.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting, or anchoring within the safety 
zone described in paragraph (a) is prohibited unless authorized by the 
Captain of the Port, Sault Sainte Marie or his designated 
representative.
    (2) Before a vessel operator may enter or operate within the safety 
zones, they must obtain permission from the Captain of the Port, Sault 
Sainte Marie, or his designated representative via VHF Channel 16 or 
telephone at (906) 635-3233. Vessel operators given permission to enter 
or operate in the safety zone must comply with all orders given to them 
by the Captain of the Port, Sault Sainte Marie or his designated 
representative.
    (d) Enforcement period. This section will be enforced from May 4, 
2020 to October 30, 2020.

    Dated: May 1, 2020.
P.S. Nelson,
Captain, U.S. Coast Guard, Captain of the Port Sault Sainte Marie.
[FR Doc. 2020-09652 Filed 5-12-20; 8:45 am]
 BILLING CODE 9110-04-P