[Federal Register Volume 87, Number 140 (Friday, July 22, 2022)]
[Rules and Regulations]
[Pages 43742-43744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15565]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0616]
RIN 1625-AA00


Safety Zone; Fairport Harbor, Fairport, OH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters of Fairport Harbor, OH. The safety zone is 
necessary and intended to protect personnel, vessels, and the marine 
environment from hazards created by shoaling in the area.

DATES: This rule is effective without actual notice July 22, 2022 
through November 15, 2022. For enforcement purposes, actual notice will 
be used from July 15, 2022, until July 22, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0616 in the ``SEARCH'' box and click ``SEARCH.'' Next, in the 
Document Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Jared Stevens, Waterways Management Division, U.S. 
Coast Guard; telephone 216-937-0124, 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 ``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 the Coast Guard has learned that 
significant shoaling has developed in the vicinity of the navigational 
channel, and the nature and location of the shoaling presents an 
imminent hazard to navigation. The safety zone must be established as 
soon as possible for the safety of all personnel, vessels, and the 
marine environment; thus, it is impracticable to publish an NPRM.
    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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed in 
order to mitigate the safety hazards associated with the shoaling in 
Fairport Harbor.

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), 46 U.S.C 70051; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2. The Captain of the Port (COTP) Buffalo has 
determined that the hazards associated with shoaling in Fairport 
Harbor, OH are a safety concern for all marine traffic. This rule is 
necessary to protect personnel, vessels, and the marine environment in 
the navigable waters within the safety zone until dredging can be 
completed in accordance with the U.S. Army Corps of Engineers' approved 
project depth for the federally maintained sections of the waterway.

IV. Discussion of the Rule

    This rule establishes a safety zone for all federally maintained 
waters of Fairport Harbor, OH. The duration of the safety zone is 
intended to protect personnel, vessels, and the marine environment in 
these navigable waters while the federally maintained channel is 
dredged in accordance with the approved U.S. Army Corps of Engineers 
federal project depths. All vessels are prohibited from transiting the 
safety zone with an under keel clearance of less than one (1) foot and 
six (6) inches. Every vessel's under keel clearance shall be verified 
by the master prior to entry and departure from Fairport Harbor, OH. 
Further, draft readings shall be documented and retained on board. 
Additionally, vessels greater than 100 Gross Registered Tons shall not 
meet or pass another vessel while navigating within the safety zone.
    The most recent U.S. Army Corps of Engineers project condition 
surveys and hydrological surveys can be found on their website: https://www.lrb.usace.army.mil/Library/Maps-and-Charts/.

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. 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, 
location, and duration of the safety zone. Moreover, the Coast Guard 
will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 
regarding the safety zone, and this regulatory action allows vessel 
traffic to transit within and around the safety zone under the 
conditions outlined in this rulemaking.

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

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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 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 lasting approximately 120 days, or until cancelled. This 
rule requires all vessels to maintain a minimum of one (1) foot and six 
(6) inches under keel clearance while transiting the safety zone. Every 
vessel's under keel clearance shall be verified by the master prior to 
entry and departure from Fairport Harbor, OH. Further, draft readings 
shall be documented and retained on board. Additionally, vessels 
greater than 100 Gross Registered Tons shall not meet or pass another 
vessel while navigating within the safety zone. It is categorically 
excluded from further review under paragraph L60(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

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05, 6.04-1, 6.04-6, 
and 160.5; Department of Homeland Security Delegation No. 00170.1, 
Revision No. 01.2


0
2. Add Sec.  165.T09-0616 to read as follows:


Sec.  165.T09-0616   Fairport Harbor Shoaling, Fairport, OH.

    (a) Location. The following area is a safety zone: all federally 
maintained waters within Fairport Harbor, OH.
    (b) Definitions. Official Patrol Vessel 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 COTP Buffalo in the enforcement 
of the regulations in this section.
    (c) Regulations. (1) All vessels are required to maintain a minimum 
of one (1) foot and six (6) inches under keel clearance while 
transiting the safety zone.
    (2) The under keel clearance shall be verified by the vessel's 
master prior to entry and departure from Fairport Harbor, OH. Draft 
readings and under keel clearance shall be documented and retained on 
board, and be readily available for verification upon request by the 
U.S. Coast Guard.
    (3) Vessels greater than 100 Gross Registered Tons shall not meet 
nor pass another vessel while navigating within the safety zone.
    (4) The Coast Guard may patrol the safety zone under the direction 
of a designated Coast Guard Patrol Commander. The Patrol Commander may 
be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign 
``PATCOM.''
    (5) No vessel shall anchor, block, loiter, or impede the through 
transit of vessels in the regulated area during the effective dates and 
times, unless cleared by or through an official patrol vessel. The 
Patrol Commander may forbid and control the movement of all vessels in 
the regulated area. When hailed or signaled by an official patrol 
vessel, a vessel shall comply with the directions given. Failure to do 
so may result in expulsion from the area, citation for failure to 
comply, or both.
    (6) Any vessel may anchor outside the regulated areas specified in 
this chapter, but may not anchor in, block, or loiter in a navigable 
channel.
    (7) The Patrol Commander may terminate the operation of any vessel 
at any time it is deemed necessary for the protection of life or 
property.
    (8) The Patrol Commander will terminate enforcement of the special 
regulations upon satisfactory completion of dredging operations in

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consultation with U.S. Army Corps of Engineers and the COTP Buffalo.
    (d) Enforcement period. This safety zone will be enforced from July 
15, 2022, until November 15, 2022.

    Dated: July 15, 2022.
M.I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2022-15565 Filed 7-21-22; 8:45 am]
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