Federal Register / Vol. 88, No. 227 / Tuesday, November 28, 2023 / Rules and Regulations 83029 

you are the operator of a vessel in the 

vicinity of the safety zone, you may not 

enter, remain in, or transit through the 

safety zone unless authorized to do so 

by the COTP or his representative, and 

you must comply with directions from 

the Patrol Commander or any Official 

Patrol displaying a Coast Guard ensign. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 

notification of this enforcement period 

via the Local Notice to Mariners and 

marine information broadcasts. 

Dated: November 20, 2023. 

David E. O’Connell, 

Captain, U.S. Coast Guard, Captain of the 

Port, Sector Maryland-National Capital 

Region. 

[FR Doc. 2023–26152 Filed 11–27–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2023–0662] 

RIN 1625–AA00 

Safety Zone; Ashtabula Power Plant 

Breakwater Armor Stone Removal, 

Lake Erie, Ashtabula, OH 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

certain waters of Lake Erie. This action 

is necessary to provide for the safety of 

life and property on these navigable 

waters near Ashtabula, Ohio during the 

Ashtabula power plant breakwater 

armor stone removal project. This rule 

will prohibit persons and vessels from 

entering the safety zone unless 

authorized by the Captain of the Port 

Buffalo. 

DATES: This rule is effective without 

actual notice from November 28, 2023 

through 11:59 p.m. on December 1, 

2024. For the purposes of enforcement, 

actual notice will be used from 7 a.m. 

on November 16, 2023, until November 

28, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2023– 

0662 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 Lieutenant Jared Stevens, 

Waterways Management Division, MSU 

Cleveland, U.S. Coast Guard; telephone 

216–937–0124, email Jared.M.Stevens@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

COTP Caption of the Port 

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 

insufficient time remains to publish an 

NPRM and receive public comments 

prior to commencement of the 

deconstruction and removal project. 

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 to wait for a comment period 

to run would be contrary to the public 

interest by inhibiting the Coast Guard’s 

ability to protect vessels in these 

navigable waters during this 

deconstruction and removal project. 

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 COTP 

Buffalo has determined a safety zone is 

needed to protect vessel traffic from 

November 16, 2023, through December 

1, 2024, during this deconstruction and 

removal project which will remove the 

breakwater armor stone near the 

Ashtabula power plant in Ashtabula, 

Ohio. 

IV. Discussion of the Rule 

This rule establishes a safety zone 

from 7 a.m. on November 16, 2023, 

through 11:59 p.m. on December 1, 

2024. The safety zone will cover all 

navigable waters encompassing a 350- 

yard radius zone centered on 

coordinates 41°54′43′′ N, 080°46′09′′ W 

(NAD83) located near the Ashtabula 

power plant located at 2133 Lake Road 

East, Ashtabula, Ohio. The zone may 

require enforcement beyond the stated 

times in the case that the construction 

project runs into unforeseen delays. 

The COTP Buffalo has determined a 

safety zone is needed to protect vessels 

during this deconstruction and removal 

project. 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. 

This rule has not been designated a 

‘‘significant regulatory action,’’ under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094 

(Modernizing Regulatory Review). 

Accordingly, this rule has not been 

reviewed by the Office of Management 

and Budget (OMB). 

This regulatory action determination 

is based the need to ensure the safety of 

vessels in these navigable waters during 

this construction project. 

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. 


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83030 Federal Register / Vol. 88, No. 227 / Tuesday, November 28, 2023 / Rules and Regulations 

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 

establishment of a temporary safety 

zone intended to ensure the safety of 

vessels near a construction project. It is 

categorically excluded from further 

review under paragraph L63(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 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 

■ 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. 

■ 2. Add § 165.T09–0662 to read as 

follows: 

§ 165.T09–0662 Safety Zone; Ashtabula 

Power Plant Breakwater Armor Stone 

Removal, Lake Erie, Ashtabula, OH. 

(a) Location. The safety zone will 

cover all navigable waters encompassing 

a 350-yard radius zone centered on 

position 41°54′43′′ N, 080°46′09′′ W 

(NAD83), located near the old Ashtabula 

power plant (2133 Lake Road East, 

Ashtabula, Ohio) on Lake Erie in 

Ashtabula, Ohio. 

(b) Enforcement period. This section 

will be enforced from 7 a.m. on 

November 16, 2023, through 11:59 p.m. 

on December 1, 2024. 

(c) 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 Captain of 

the Port Sector Buffalo, (COTP) in the 

enforcement of the regulations in this 

section. Participant means all persons 

and vessels attending the event. 

(d) Regulations. (1) The Coast Guard 

may patrol the event area 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.’’ 

(2) All persons and vessels not 

registered with the sponsor as 

participants or official patrol vessels are 

considered spectators. The ‘‘official 

patrol vessels’’ consist of any Coast 

Guard, state or local law enforcement 

and sponsor provided vessels 

designated or assigned by the COTP 

Sector Buffalo, to patrol the event. 

(3) Spectator vessels desiring to 

transit the regulated area may do so only 

with prior approval of the Patrol 

Commander and when so directed by 

that officer and will be operated at a no 

wake speed in a manner which will not 

endanger participants in the event or 

any other craft. 

(4) No spectator shall anchor, block, 

loiter, or impede the through transit of 

official patrol vessels in the regulated 

area during the effective dates and 

times, unless cleared for entry by or 

through an official patrol vessel. 

(5) 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 come to an immediate stop 

and 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 spectator vessel may anchor 

outside the regulated areas specified in 

this chapter, but may not anchor in, 

block, or loiter in a navigable channel. 


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Federal Register / Vol. 88, No. 227 / Tuesday, November 28, 2023 / Rules and Regulations 83031 

1U.S. Department of Health and Human Services, 

Centers for Medicare and Medicaid Services, 

Medicare Claims Processing Manual Chapter 6— 

SNF Inpatient Part A Billing and SNF Consolidated 

Billing (Rev. 11109, 11–04–21), https://

www.cms.gov/regulations-and-guidance/guidance/ 

manuals/downloads/clm104c06.pdf (last visited 

April 11, 2023). 

(7) The Patrol Commander may 

terminate the event or 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 at the conclusion of the 

event. 

Dated: November 17, 2023. 

S.M. Murray, 

Commander, U.S. Coast Guard, Alternate 

Captain of the Port Buffalo. 

[FR Doc. 2023–26149 Filed 11–27–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 51 

RIN 2900–AR62 

Payments Under State Home Care 

Agreements for Nursing Home Care 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts as final, with one 

change, a proposed rule amending its 

State home per diem regulation to 

provide a new formula for calculating 

the prevailing rate VA would pay a State 

home that enters into a State home care 

agreement to provide nursing home care 

to eligible veterans. 

DATES: This rule is effective December 

28, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Colette Alvarez, Chief of Staff Home Per 

Diem Program, Geriatrics and Extended 

Care (12GEC), Veterans Health 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue NW, 

Washington, DC 20420, (202) 461–6750. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register (FR) on December 21, 2022, VA 

proposed to amend its per diem 

regulations in part 51 of title 38, Code 

of Federal Regulations (CFR) to provide 

a new formula for calculating the 

prevailing rate VA will pay a State home 

that enters into a State home care 

agreement to provide nursing home care 

to eligible veterans. 87 FR 78038. VA 

provided a 60-day comment period, 

which ended on February 21, 2023. Two 

comments were received, one of which 

included multiple issues, and these 

comments are addressed below by topic. 

VA makes one change to the rule based 

on the comments received. 

U.S. Public Health Service (USPHS) and 

Eligibility for Care in a State Home 

One commenter questioned whether 

veterans of the USPHS are eligible for 

care in State homes even if the State 

does not recognize service in the USPHS 

for veteran status. The commenter 

further asserts that USPHS veterans are 

veterans by Federal law and eligible for 

all VA benefits, and if a State home is 

receiving funding from VA then a 

USPHS veteran should be eligible for 

care in that State home even if the State 

does not recognize a USPHS veteran for 

other State benefits. 

While VA considers this comment 

outside of the scope of the rulemaking, 

we clarify that an individual is a veteran 

under 38 United States Code (U.S.C.) 

101(2) if the individual ‘‘served in the 

active military, naval, air, or space 

service and . . . was discharged or 

released therefrom under conditions 

other than dishonorable.’’ ‘‘Active 

military, naval, air, or space service’’ 

includes ‘‘active duty’’ and certain 

periods of ‘‘active duty for training’’ and 

‘‘inactive duty training’’ which are all 

defined by 38 U.S.C. 101(21)–(24). 

These terms prescribe the type of 

service an individual needs to have had 

to be eligible for VA health care benefits 

under 38 U.S.C. 1710 and 1705 and are 

inclusive of service in the USPHS. 38 

Code of Federal Register (CFR) 17.31 

generally incorporates the 38 U.S.C. 101 

definitions of active service, active duty, 

active duty for training, and inactive 

duty training, as well as certain other 

service recognized as active service 

under 38 U.S.C. 106. In short, § 17.31 

addresses the duty periods considered 

under active service for eligibility for 

VA medical benefits, and it is inclusive 

of service in the USPHS. Thus, an 

individual with full-time service in the 

USPHS may qualify as a ‘‘veteran’’ for 

purposes of health care benefits 

administered by VA. 

However, the designation of veteran 

for purposes of VA health care benefits 

does not require a State home to accept 

a veteran into State home. The VA State 

home program pays per diem to State 

homes for three types of care provided 

to eligible veterans: nursing home care, 

domiciliary care, and adult day health 

care (ADHC). The statutory authority for 

the payment program is set forth at 38 

U.S.C. 1741–43 and VA has published 

regulations governing this program at 38 

CFR part 51. Sections 51.50 through 

51.52 address which veterans are 

eligible for purposes of payment of per 

diem for nursing home care, domiciliary 

care, and ADHC, respectively. An 

important distinction is that while VA 

can pay per diem to State homes for care 

provided to eligible veterans, State 

homes are not obligated to accept all 

eligible veterans. VA does not have 

management authority over State 

homes. State homes are owned and 

operated by State governments and each 

State establishes eligibility and 

admission criteria for its homes. State 

homes may have additional admission 

requirements such as age, wartime 

service, years of service, and residency 

requirements. Therefore, VA is unable 

to dictate which eligible veterans for 

purposes of payment of per diem may 

be admitted to a State home. VA makes 

no changes based on this comment. 

State Home Responsibilities Under the 

Prevailing Rate 

One commenter raised concerns that 

VA is proposing to continue to use the 

Centers for Medicare and Medicaid 

Services (CMS) Prospective Payment 

System (PPS) for creating the baseline 

for the prevailing rate without utilizing 

Medicare’s consolidated billing 

guidelines to confirm which services are 

covered under the rate. Specifically, the 

commenter referred to the Medicare 

Claims Processing Manual Chapter 6— 

Skilled Nursing Facility (SNF) Inpatient 

Part A Billing and SNF Consolidated 

Billing (Medicare Manual).1 The 

commenter stated that all services 

considered within the scope and 

capability of nursing home care are paid 

under the PPS rate and that the 

Medicare Manual lists which services 

are included and excluded under the 

PPS rate. Further, the commenter 

suggested that VA should use the 

Medicare Manual to confirm which 

services are covered under the 

prevailing rate because State homes are 

finding more instances where there is an 

expectation for State homes to pay for 

services that have been specifically 

excluded under PPS. The commenter 

specifically mentioned psychologist and 

psychiatric services, and high-cost 

medications (e.g., high-intensity anticancer drugs). The commenter also 

stated that all drugs not listed on the 

most recent VA formulary should 

qualify for an exclusion from the 

prevailing rate calculation since these 

medications are not routinely 

administered in a SNF or are 

exceptionally expensive. Finally, the 

commenter requested a guide for State 

homes and VA staff to determine the 


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