[Federal Register Volume 88, Number 227 (Tuesday, November 28, 2023)]
[Rules and Regulations]
[Pages 83029-83031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26149]


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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.

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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 
<a href="/cdn-cgi/l/email-protection#317b504354551f7c1f62455447545f4271444252561f5c585d"><span class="__cf_email__" data-cfemail="4e042f3c2b2a6003601d3a2b382b203d0e3b3d2d2960232722">[email protected]</span></a>.

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
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[deg]54'43'' N, 080[deg]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.

[[Page 83030]]

    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

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.T09-0662 to read as follows:


Sec.  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[deg]54'43'' 
N, 080[deg]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.

[[Page 83031]]

    (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


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