[Federal Register Volume 89, Number 145 (Monday, July 29, 2024)]
[Rules and Regulations]
[Pages 60823-60825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16533]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0658]
RIN 1625-AA00


Safety Zone; Demolition of Lock and Dam 3, Monongahela River Mile 
Marker 23.5 to 24.5, Elizabeth, PA

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary interim rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the Monongahela River from mile marker 23.5 to mile marker 
24.5 in Elizabeth, PA. This rule is substantially similar to a 
temporary safety zone published on June 27, 2024. We must establish 
this temporary safety zone because of the continuation of lock and dam 
demolition. This regulation will prohibit entry of vessels or persons 
into the safety zone to protect personnel, vessels, and the marine 
environment from potential hazards during demolition activities planned 
from August 1, 2024, through December 31, 2024.

DATES: This rule is effective from August 1, 2024, through December 31, 
2024. Comments and related material must be received by the Coast Guard 
on or before September 27, 2024.

ADDRESSES: We encourage you to submit comments identified by docket 
number USCG-2024-0658 using the Federal Decision Making Portal at 
https://www.regulations.gov. See the ``Public Participation and Request 
for Comments'' portion of the SUPPLEMENTARY INFORMATION section for 
further instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Eyobe Mills, Marine Safety Unit, Pittsburgh, 
U.S. Coast Guard, at telephone 412-221-0807, 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 similar rule published at 89 FR 53491 on June 27, 2024. The 
Coast Guard is issuing this interim temporary rule without prior notice 
and opportunity to comment pursuant to the authority in 5 U.S.C. 
553(b)(B). This statutory 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.'' 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 public interest. The notice allowing the 
demolition project to proceed and providing updated timelines for the 
project was only recently finalized and provided to the Coast Guard, 
which did not give the Coast Guard enough time to publish an NPRM, take 
public comments, and issue a final rule before ethe existing regulation 
expires. Timely action is needed to respond to the potential safety 
hazards associated with demolition of the lock and dam, which involves 
the use of explosives. It would be impracticable and contrary to the 
public interest to publish an NPRM because we must establish the safety 
zone to protect the safety of the waterway users, demolition crew, 
other personnel associated with the project, and the public. A delay of 
the project to accommodate a full notice and comment period would delay 
necessary operations, result in increased costs, and delay the 
completion date of the demolition project and subsequent opening of the 
navigation channel. We must establish this safety zone by August 1, 
2024, and lack sufficient time to provide a reasonable comment period 
and then consider those comments before issuing this rule.
    Also, 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 reasons stated in the 
preceding paragraph, delaying the effective date of this rule is 
impracticable and contrary to public interest because timely action is 
needed to respond to the potential safety hazards associated with the 
demolition of the lock and dam starting August 1, 2024.
    Although this regulation is published as an interim rule without 
prior notice, public comment is nevertheless desirable to ensure that 
the regulation is both workable and reasonable. Accordingly, persons 
wishing to comment may do so by submitting written comments as set out 
under ADDRESSES in this preamble. Commenters should include their names 
and addresses, identify the docket number for the regulation, and give 
reasons for their comments. If the Coast Guard determines that changes 
to the temporary interim rule are necessary, we will publish a 
temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this temporary interim rule under the 
authority in 46 U.S.C. 70034. The Captain of the Port Pittsburgh (COTP) 
has determined that potential hazards associated with this lock and dam 
demolition will be a safety concern for anyone on the Monongahela River 
within mile marker 23.5 through 24.5. The use of explosives and other 
activities involved in demolishing the lock and dam involve inherent 
risk. To minimize risk to personnel, vessels, property, and the marine 
environment, no vessel may moor, anchor, transit, or otherwise be 
present in the designated safety zone at any time during the periods of 
enforcement unless receiving prior permission from the COTP or their 
designated representative.
    This temporary interim rule is needed to protect personnel, 
vessels, and the

[[Page 60824]]

marine environment in the navigable waters within the safety zone 
during the lock and dam demolition.

IV. Discussion of the Rule

    This temporary interim rule establishes a safety zone from August 
1, 2024, through December 31, 2024. The safety zone will cover all 
navigable waters between mile marker 23.5 and mile marker 24.5 on the 
Monongahela River in Elizabeth, PA. This rule will prohibit all persons 
and vessel traffic from the safety zone unless an exception is 
authorized by the COTP or their designated representative. The COTP 
will only enforce the safety zone on one or two days per week until 
December 31, 2024. The duration of the zone is intended to ensure the 
safety of vessels and these navigable waters before, during, and after 
the scheduled initial demolition of Locks and Dam No. 3 at mile marker 
23.8 on the Monongahela River.
    The Coast Guard will notify the public and local mariners of this 
safety zone through appropriate means, which may include, but are not 
limited to, publication in the Federal Register, the Local Notice to 
Marines, and Broadcast Notice to Mariners via marine Channel 16 (VHF-
FM) in advance of any enforcement.

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.

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 temporary safety zone. This safety zone 
impacts only a one mile stretch of the Monongahela River starting 
August 1, 2024, through December 31, 2024. The safety zone will be 
enforced only during demolition activities, which are anticipated to 
take place one to two days per week, each week throughout the period. 
Vessel traffic will be permitted to transit the area at other times. 
Moreover, the Coast Guard will issue Local Notice to Mariners (LNMs), 
Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information 
Bulletins (MSIBs), via VHF-FM marine channel 13 or 16 about the zone 
and the rule allows vessels to seek permission from the COTP to transit 
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 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 impacts only a one mile stretch of the Monongahela 
River starting July 8, 2024, at 4 a.m., through July 31, 2024, at 11:59 
p.m. 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

[[Page 60825]]

on locating the docket, see the ``Public Participation and Request for 
Comments'' portion of this SUPPLEMENTARY INFORMATION section.

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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2024-0658 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION 
CONTACT section of this document for alternate instructions.
    Viewing material in the docket. To view documents mentioned in this 
rule as being available in the docket, find the docket as described in 
the previous paragraph, and then select ``Supporting & Related 
Material'' in the Document Type column. Public comments will also be 
placed in our online docket and can be viewed by following instructions 
on the https://www.regulations.gov Frequently Asked Questions web page. 
We review all comments received, but we will only post comments that 
address the topic of this rule. We may choose not to post off-topic, 
inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more information about privacy and 
submissions to the docket in response to this document, see DHS's 
eRulemaking System of Records Notice (85 FR 14226, March 11, 2020).

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: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T08-0658 to read as follows:


Sec.  165.T08-0658  Safety Zone; Lock and Dam 3 Demolition, Elizabeth, 
PA.

    (a) Location. The following area is a safety zone: All navigable 
waters on the Monongahela River between mile marker 23.5 and mile 
marker 24.5.
    (b) Definitions. As used in this section--
    Designated representative means any Coast Guard commissioned, 
warrant, petty officer, a Coast Guard coxswain, petty officer, or other 
officer operating a Coast Guard vessel, or any Federal, State, or local 
law enforcement officer who has been designated by the Captain of the 
Port Pittsburgh (COTP) to act on his or her behalf. The designated 
representative may be on an official patrol vessel or may be on shore, 
and will communicate with vessels via VHF-FM radio or loudhailer. In 
addition, members of the Coast Guard Auxiliary may be present to inform 
vessel operators of the regulations in this section.
    Official patrol vessels mean any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP to enforce this section.
    (c) Regulations. When the safety zone in paragraph (a) of this 
section is enforced, the following regulations, along with those 
contained in 33 CFR 165.23 apply:
    (1) No person or vessel may enter the safety zone described in 
paragraph (a) of this section without the permission of the COTP or the 
COTP's designated representative.
    (2) Any person or vessel permitted to enter the safety zone shall 
comply with the directions and orders of the COTP or the COTP's 
designated representative. Any vessel that is granted permission to 
enter or remain in this zone by the COTP or the COTP's designated 
representative must proceed through the zone with caution and operate 
at a speed no faster than that speed necessary to maintain a safe 
course, unless otherwise required by the Navigation Rules in 33 CFR 
chapter I, subchapter E.
    (3) To seek permission to enter the safety zone, contact the COTP 
or the COTP's representative by VHF Channel 13 or 16, or through the 
Marine Safety Unit Pittsburgh at (412) 221-0807.
    (d) Effective period and enforcement period. The safety zone in 
paragraph (a) of this section is in effect from August 1, 2024, through 
December 31, 2024. The section is subject to enforcement at all times 
during this period. The Coast Guard anticipates the safety zone will be 
enforced for approximately two days per week throughout the period, but 
that may be adjusted based on actual demolition activities. The COTP, 
or a designated representative, will inform the public through written 
Local Notice to Mariners, and Broadcast Notice to Mariners via VHF-FM 
marine channel 13 or 16, of the enforcement period of the safety zone.
    (e) Penalties. Those who violate this section are subject to the 
penalties set forth in 46 U.S.C. 70036.

    Dated: July 23, 2024.
Justin R. Jolley,
Commander, U.S. Coast Guard, Captain of the Port, MSU Pittsburgh.
[FR Doc. 2024-16533 Filed 7-26-24; 8:45 am]
BILLING CODE 9110-04-P