[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Rules and Regulations]
[Pages 72887-72889]
[FR Doc No: 2022-25774]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0949]
RIN 1625-AA00

Safety Zone; Corpus Christi Shipping Channel, Corpus Christi, TX

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

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Corpus Christi Shipping Channel in a zone
defined by the following coordinates; 27[deg]50'31.28'' N,
97[deg]04'17.23'' W; 27[deg]50'31.73'' N, 97[deg]04'15.44'' W;
27[deg]50'29.06'' N, 97[deg]04'16.61'' W; 27[deg]50'29.32'' N,
97[deg]04'14.82'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
pipelines that will be removed from the floor of the Corpus Christi
Shipping Channel. Entry of vessels or persons into this zone is
prohibited unless specifically authorized by the Captain of the Port
Sector Corpus Christi or a designated representative.

DATES: This rule is effective without actual notice from November 28,
2022, through 3 p.m. on December 4, 2022. For the purposes of
enforcement, actual notice will be used from November 21, 2022, until
November 28, 2022.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander Anthony Garofalo, Sector Corpus
Christi Waterways Management Division, U.S. Coast Guard; telephone 361-
939-5130, 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 it is impracticable. We must
establish this safety zone immediately to protect personnel, vessels,
and the marine environment from potential hazards created by pipeline
removal operations and lack sufficient time to provide a reasonable
comment period and then to consider those comments before issuing the
rule.
    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 contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with pipeline removal operations in the Corpus Christi Shipping
Channel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Corpus Christi (COTP) has
determined that potential hazards associated with pipeline removal
operations occurring from 8 p.m. on November 21, 2022, through 3 p.m.
on December 4, 2022, will be a safety concern for anyone within the
Corpus Christi Shipping Channel in a zone defined by the following
coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W. The
purpose of this rule is to ensure safety of vessels and persons on
these navigable waters in the safety zone while pipelines are removed
from the floor of the Corpus Christi Shipping Channel.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 8 p.m. on
November 21, 2022, through 3 p.m. on December 4, 2022, and will be
subject to enforcement from 8 p.m. to 3 p.m. of the next day, each day.
The safety zone will encompass all navigable waters of the Corpus
Christi Shipping Channel in a zone defined by the following
coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W. The
pipeline will be removed along the floor of the Corpus Christi Shipping
Channel. No vessel or person is permitted to enter the temporary safety
zone during the effective period without obtaining permission from the
COTP or a designated representative, who may be contacted on Channel 16
VHF-FM (156.8 MHz) or by telephone at<PHONE_NUMBER>. The Coast Guard
will issue Broadcast Notices to Mariners, Local Notices to Mariners,
and/or Safety Marine Information Broadcasts as appropriate.

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. The temporary safety zone
will be enforced for a short period of only 19 hours each day. The rule
does not completely restrict the traffic within a waterway and allows
mariners to request 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
temporary 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
contact 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

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, 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 for navigable waters of the Corpus Christi Shipping Channel in a
zone defined by the following coordinates; 27[deg]50'31.28'' N,
97[deg]04'17.23'' W; 27[deg]50'31.73'' N, 97[deg]04'15.44'' W;
27[deg]50'29.06'' N, 97[deg]04'16.61'' W; 27[deg]50'29.32'' N,
97[deg]04'14.82'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
pipeline that will be removed from the floor of the Corpus Christi
Shipping Channel. It is categorically excluded from further review
under paragraph L60(d) 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 contact 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; 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.

0
2. Add Sec.  165.T08-0949 to read as follows:

Sec.  165.T08-0949  Safety Zone; Corpus Christi Shipping Channel,
Corpus Christi, TX.

    (a) Location. The following area is a safety zone: all navigable
waters of the Corpus Christi Shipping Channel in a zone defined by the
following coordinates; 27[deg]50'31.28'' N, 97[deg]04'17.23'' W;
27[deg]50'31.73'' N, 97[deg]04'15.44'' W; 27[deg]50'29.06'' N,
97[deg]04'16.61'' W; 27[deg]50'29.32'' N, 97[deg]04'14.82'' W.
    (b) Enforcement period. This section will be enforced from 8 p.m.
on November 21, 2022, through 3 p.m. on December 4, 2022. This section
is subject to enforcement from 8 p.m. to 3 p.m. of the next day, each
day.
    (c) Regulations. (1) According to the general regulations in Sec.
165.23, entry into the temporary safety zone in paragraph (a) of this
section is prohibited unless authorized by the Captain of the Port
Sector Corpus Christi (COTP) or a designated representative. They may
be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-
939-0450.
    (2) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
    (d) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and date for the safety
zone through Broadcast Notices to Mariners, Local Notices to Mariners,
and/or Safety Marine Information Broadcasts as appropriate.

    Dated: November 18, 2022.
J.B. Gunning,
Captain, U.S. Coast Guard, Captain of the Port Sector Corpus Christi.
[FR Doc. 2022-25774 Filed 11-25-22; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 81, Number 177 (Tuesday, September 13, 2016)]
[Notices]
[Pages 62970-62972]
[FR Doc No: 2016-21978]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2014-0118; Notice 2]

BMW of North America, LLC, Grant of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT)

ACTION: Grant of petition.

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SUMMARY: BMW of North America, LLC, (BMW) a subsidiary of BMW AG in
Munich, Germany, has determined that certain Model year (MY) 2015 BMW
model X5 xDrive35i and model X5 xDrive35d multipurpose passenger
vehicles (MPV) do not fully comply with paragraph S4.3.3 of Federal
Motor Vehicle Safety Standard (FMVSS) No. 110, Tire Selection and Rims
and Motor Home/Recreation Vehicle Trailer Load Carrying Capacity
Information for Motor Vehicles with a GVWR of 4,536 kilograms (10,000
pounds) or less. BMW filed a report dated October 22, 2014, pursuant to
49 CFR part 573, Defect and Noncompliance Responsibility and Reports.
BMW then petitioned NHTSA under 49 CFR part 556 requesting a

decision that the subject noncompliance is inconsequential to motor
vehicle safety.

ADDRESSES: For further information on this decision contact Stu Seigel,
Office of Vehicle Safety Compliance, the National Highway Traffic
Safety Administration (NHTSA), telephone<PHONE_NUMBER>, facsimile
(202) 366-7002.

SUPPLEMENTARY INFORMATION:
    I. BMW's Petition: Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see
implementing rule at 49 CFR part 556), BMW submitted a petition for an
exemption from the notification and remedy requirements of 49 U.S.C.
Chapter 301 on the basis that this noncompliance is inconsequential to
motor vehicle safety.
    Notice of receipt of BMW's petition was published, with a 30-day
public comment period, on April 3, 2015 in the Federal Register (80 FR
18294). No comments were received. To view the petition and all
supporting documents log onto the Federal Docket Management System
(FDMS) Web site at: http://www.regulations.gov/. Then follow the online
search instructions to locate docket number ``NHTSA-2014-0118.''
    II. Vehicles Involved: Affected are approximately 68 MY 2015 BMW
model X5 xDrive35i and model X5 xDrive35d MPVs manufactured between
October 3, 2014 through October 7, 2014.
    III. Noncompliance: BMW explains that the vehicle certification
labels required by 49 CFR part 567, and some of the tire information
labels required by FMVSS No. 110, affixed to the subject vehicles show
that the vehicles were originally equipped with 18-inch tires and rims.
The vehicles were actually originally equipped with 19-inch tires and
rims. BMW believes that the noncompliance is that the certification
label required by 49 CFR part 567, and in some cases the tire
information labels required by FMVSS No. 110, do not list rim
information for the tires installed on the vehicles as original
equipment as required by paragraph S4.3.3 of FMVSS No. 110.
    Rule Text: Paragraph S4.3.3 of FMVSS No. 110 requires in pertinent
part:

    S4.3.3 Additional labeling information for vehicles other than
passenger cars. Each vehicle shall show the size designation and, if
applicable, the type designation of rims (not necessarily those on
the vehicle) appropriate for the tire appropriate for use on that
vehicle, including the tire installed as original equipment on the
vehicle by the vehicle manufacturer, after each GAWR listed on the
certification label required by Sec.  567.4 or Sec.  567.5 of this
chapter . . .

    V. Summary of BMW's Analyses: BMW stated its belief that the
subject noncompliance is inconsequential to motor vehicle safety for
the following reasons:
    In the case of the subject vehicles with an incorrect Part 567
certification label but a correct FMVSS No. 110 tire information label,
BMW states that when a person checks or adjusts the inflation of a tire
and uses this (correct) FMVSS No. 110 tire information label, the
person will have the correct inflation pressure available from that
label. If, however, the person only looks at the certification label,
or both the certification and tire information labels, BMW states that
the person may then become unsure of what tires have been installed on
the vehicle. Should this occur, BMW states that a number of information
sources and services are available which can be used to determine the
correct tire size and recommended cold inflation pressure. BMW states
that these information sources include the tires installed on the
vehicle which have the tire size information contained on their
sidewalls, the vehicle's Owner's Manual which contains information
pertaining to the various tire sizes and tire pressure for use on the
affected vehicles, and BMW's Roadside Assistance\TM\ program which is
available 24 hours/day and provides representatives who have
information on all available tire sizes and specifications for a given
model and model year of BMW. BMW states its belief that all of the
above listed sources would lead the driver to obtaining the correct
recommended cold inflation pressure when attempting to inflate the
tires mounted on their vehicle.
    For the subject vehicles containing both incorrect 49 CFR part 567
certification labels' and incorrect FMVSS No. 110 tire information
labels BMW states that the driver can use the labeling on the sidewall
of the installed tires, the vehicle's owner's manual, and BMW Roadside
Assistance\TM\ to determine the recommended cold inflation pressure for
the tires installed on their vehicle.
    BMW also maintains that if a driver were to use the cold inflation
pressure shown on the incorrect labels for the 18-inch tires when
inflating the 19-inch tires, that pressure would be sufficient to
support vehicle loading. Their calculations using the MY 2015 X5
xDrive35i for example show that the determined load rating for two 19-
inch tires inflated to the pressure meant for 18-inch tires is 1,572
kg. Because the front gross axle weight rating (GAWR) is 1,279 kg, BMW
concludes that the 19-inch tires would be adequately inflated. BMW also
included calculations to demonstrate that the information on the
certification labels is correct for the 18-inch tires mounted on the
subject vehicles.
    BMW states that BMW Customer Relations have not received any
contact from vehicle owners regarding this issue and, therefore, are
unaware that any vehicle owner has encountered this issue in the field.
They state that they are also unaware of any accident or injuries that
have occurred as a result of this noncompliance.
    BMW has additionally informed NHTSA that it has corrected the
subject noncompliance.
    In summation, BMW believes that the described noncompliance of the
subject vehicles is inconsequential to motor vehicle safety, and that
its petition, to exempt BMW from providing recall notification of
noncompliance as required by 49 U.S.C. 30118 and remedying the recall
noncompliance as required by 49 U.S.C. 30120 should be granted.

NHTSA's Decision

    NHTSA's Analysis: The 68 affected vehicles were all originally
equipped with 19 inch tires but the Part 567 certification label on
these vehicles incorrectly only lists rim type and size information for
an 18 inch tire violating the requirements of FMVSS No. 110 section
S4.3.3., which effectively requires that the rim size on the label be
appropriate for the tire size installed on the vehicle as original
equipment. Additionally, for some of the 68 vehicles, the FMVSS No.110
required vehicle placard lists information for an 18 inch tire,
including tire size and recommended inflation pressure, when a 19 inch
tire was originally installed on the vehicle violating FMVSS No.110
sections S4.3(c) and (d). Section S4.3(c) requires that the placard
identify the manufacturer recommended cold tire inflation pressure for
the fitted tires, and section S4.3(d) requires the tire size
designation for the tires installed at the time of the first purchase.
    For all 68 vehicles where the rim type and size is not provided for
the originally installed 19 inch tire, the agency believes the vehicle
owners will not encounter any safety problems if their rims need to be
replaced. First, in addition to the rim size information that was
inadvertently not included on the certification label required by 49
CFR part 567, FMVSS No. 110 requires that the rim size, along with
other information, be stamped on the rim itself. Also, the tire size
stamped on the sidewall of the tire indicates the corresponding rim
diameter.

Furthermore, BMW mentioned that their owner's manual contains tire
information and that vehicle owners can contact BMW Roadside
Assistance, BMW Assist, and BMW Customer Relations for additional
assistance.
    For the vehicles where the FMVSS No. 110 required vehicle placard
lists information for an 18 inch tire, including tire size and
recommended inflation pressure, when a 19 inch tire was originally
installed on the vehicle, a different analysis needs to be considered.
FMVSS No. 110 requires that the original tires installed on a vehicle
and the tires listed on the vehicle placard be the same size, and that
the tires at the manufacturer recommended inflation pressure be
appropriate for the designed vehicle maximum load conditions. If a
customer were to look at the vehicle placard to determine recommended
inflation pressure values they would see values intended for the 18
inch tire and not the 19 inch tire. If that customer did not notice
that their vehicle had 19 inch wheels installed they may use the 18
inch tire inflation values which are less than required for the 19 inch
tires. If this were the case, calculations show that the 19 inch tire
load carrying capacities at the 18 inch tire delineated pressures (with
tire load capacity reduced/divided by a 1.1 reduction factor as
required in FMVSS No. 110 for passenger car tires used on multi-purpose
passenger vehicles) is appropriate for the front and rear specified
GAWR's in all affected vehicle models except for the ``worst case''
model with the heaviest GAWR which is the axle rating assigned by BMW
to the X5xDrive35i 7-seater rear axle. For a 19 inch tire at an 18 inch
recommended inflation pressure of 33 PSI and 41 PSI front and rear
axles respectively, a front tire load rating is 810 kg, then, with a
10% reduction factor results in a value of 736 kg or a total of 1,472
kg front axle load carrying capacity. This value exceeds all four front
GAWR values provided by BMW for the four models of vehicles with the
largest axle rating value of 1334 kg. At 41 psi, the per tire load
rating equates to 950 kg, then with a 10% reduction factor becomes 864
kg per tire or 1727 kg rear axle load carrying capacity. The 1727 kg
value is larger than rear axle GAWR values provided by BMW on three
models, but not on the fourth model, the 7-seat X5 vehicle which has a
rear GAWR of 1742 kg. For this model at full load capacity, the tires
technically, are undersized for the rear axle by 15 kg (1742kg-1727 kg)
or approximately 33 pounds divided by the two tires resulting in
approximately 15 pounds per tire. In follow-up discussions with BMW,
they indicated that only five of the 68 non-compliant vehicles are the
7-seat model, and agreed that for those five vehicles new corrected
FMVSS No. 110 vehicle placard labels will be sent to the owners. On 08/
16/2016, BMW confirmed that the respective five owners were contacted
and new vehicle placards were mailed out.
    NHTSA's Decision: Considering the above analysis, the fact that BMW
stated they have no reports of accidents or injuries due to this
noncompliance, and that BMW is providing corrected replacement labels
to the five owners of the 7-seat model X5 which has tire overload
potential, NHTSA finds that BMW has met its burden of persuasion that
the subject FMVSS No. 110 rim and tire size labeling noncompliances on
the subject vehicles are inconsequential to motor vehicle safety.
Accordingly, BMW's petition is hereby granted and BMW is consequently
exempted from the obligation of providing notification of, and a free
remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, this decision
only applies to the subject vehicles that BMW no longer controlled at
the time it determined that the noncompliance existed. However, the
granting of this petition does not relieve vehicle distributors and
dealers of the prohibitions on the sale, offer for sale, or
introduction or delivery for introduction into interstate commerce of
the noncompliant vehicles under their control after BMW notified them
that the subject noncompliance existed.

    Authority:  (49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8)

Jeffrey M. Giuseppe,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2016-21978 Filed 9-12-16; 8:45 am]
 BILLING CODE 4910-59-P


[Federal Register: July 2, 2008 (Volume 73, Number 128)]
[Rules and Regulations]
[Page 37806-37808]
[DOCID:fr02jy08-14]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-0207]
RIN 1625-AA09

Drawbridge Operation Regulations; Potomac River, Oxon Hill, MD
and Alexandria, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary rule.

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SUMMARY: The Coast Guard is temporarily changing the regulations
governing the operation of the new

Woodrow Wilson Memorial (I-95) Bridge, mile 103.8, across Potomac River
between Alexandria, Virginia and Oxon Hill, Maryland. This action is
necessary to finalize construction of the drawbridge.

DATES: This temporary rule is effective from July 2, 2008 to March 1,
2009.

ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket USCG-2008-0207 and are available online at
http://www.regulations.gov. This material is also available for
inspection or copying at two locations: the Docket Management Facility
(M-30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays and the Commander (dpb), Fifth Coast Guard District, Federal
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004
between 8 a.m. and 4 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard
District, at<PHONE_NUMBER>. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On April 18, 2008, we published a notice of proposed rulemaking
(NPRM) entitled ``Drawbridge Operation Regulations; Potomac River, Oxon
Hill, MD and Alexandria, VA'' in the Federal Register (73 FR 21090). We
received two e-mails commenting on the proposed rule. No public meeting
was requested, and none was held.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective in less than 30 days after
publication in the Federal Register. While construction continues, this
rule will allow the drawbridge to remain closed-to-navigation each day
from 10 a.m. to 2 p.m. until and including March 1, 2009.

Background and Purpose

    On March 5, 2008, we published a notice of temporary deviation from
the regulations entitled ``Drawbridge Operation Regulations; Potomac
River, Between Maryland and Virginia'' in the Federal Register (73 FR
13127), which ended on May 30, 2008.
    The Maryland State Highway Administration and the Virginia
Department of Transportation, co-owners of the drawbridge, requested an
extension of the aforementioned temporary deviation for a longer period
of time in an effort to minimize the potential for major regional
traffic impacts and consequences during bridge openings while
construction continues. Bridge owners requested that the drawbridge not
be available for openings for vessels each day between the hours of 10
a.m. to 2 p.m. through Sunday, March 1, 2009 or until the bridge is
properly commissioned, whichever comes first. Construction will
continue during this time period and the normal vehicular traffic
pattern with five lanes operating in each direction is not anticipated
until near the end of the time period.
    From a river-user standpoint, the coordinators for the construction
of the new Woodrow Wilson Bridge Project have received no requests from
boaters or mariners to open during the 10 a.m. to 2 p.m. timeframe
since the first temporary deviation was issued in late June 2006. In
fact, no requests have been received for an opening of the new bridge
at all since July 3, 2006. Finally, the coordinators have received no
complaints on the 10 a.m. to 2 p.m. restriction. This temporary rule
will affect only vessels with mast heights of 75 feet or greater.
Furthermore, all operators of affected vessels with mast heights
greater than 75 feet will be able to request an opening of the
drawbridge in the ``off-peak'' vehicle traffic hours (evening and
overnight) in accordance with 33 CFR 117.255(a).

Discussion of Comments and Changes

    The Coast Guard received two comments by e-mail to the NPRM. One
respondent stated that this temporary change of the regulation will
have minimal effect on their Potomac River operation and the delivery
of the jet fuel barge can be scheduled around the daily planned
closure.
    The other respondent indicated that their tugs did not need to open
the drawbridge; the vertical clearance is sufficient and did not
foresee any issues as long as they can still use the channel.
    Based on the comments received, we are issuing a temporary rule
without substantive change from the NPRM.

Discussion of Rule

    The Coast Guard is temporarily amending 33 CFR Sec.  117.255 by
inserting new paragraphs (a)(2)(iii) and (a)(4)(iv), which allow the
draw of the Woodrow Wilson Memorial (I-95) Bridge, at mile 103.8,
between Alexandria, Virginia and Oxon Hill, Maryland to remain closed
between 10 a.m. and 2 p.m. through March 1, 2009.

Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. We reached this conclusion based on the
fact that this temporary change will have only a minimal impact on
maritime traffic transiting the bridge. All operators of affected
vessels with mast heights greater than 75 feet will be able to request
an opening of the drawbridge in the ``off-peak'' vehicle traffic hours
(evening and overnight) in accordance with 33 CFR 117.255(a), and
mariners can plan their trips in accordance with the scheduled bridge
openings to minimize delays.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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.
    This rule will not have a significant economic impact on a
substantial number of small entities because the rule only adds minimal
restrictions to the movement of navigation, all operators of affected
vessels with mast heights greater than 75 feet will be able to request
an opening of the drawbridge in the ``off-peak'' vehicle traffic hours
(evening and overnight) in accordance with 33 CFR 117.255(a), and
mariners who plan their transits in accordance with the scheduled
bridge openings can minimize delay.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. 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.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

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 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.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it would 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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD
and Department of Homeland Security Management Directive 5100.1, which
guides the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that there are no factors in this case that would limit the use of a
categorical exclusion under section 2.B.2 of the Instruction.
Therefore, this rule is categorically excluded, under figure 2-1,
paragraph (32)(e) of the Instruction, from further environmental
documentation.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland
Security Delegation No. 0170.1.

0
2. From July 2, 2008 to March 1, 2009, in Sec.  117.255 add new
paragraphs (a)(2)(iii) and (a)(4)(iv) to read as follows:

Sec.  117.255  Potomac River.

    (a) * * *
    (2) * * *
    (iii) From July 2, 2008 to March 1, 2009, from 10 a.m. to 2 p.m.,
the draw need not be opened.
* * * * *
    (4) * * *
    (iv) From July 2, 2008 to March 1, 2009, from 10 a.m. to 2 p.m.,
the draw need not be opened.
* * * * *

    Dated: June 19, 2008.
Fred M. Rosa, Jr.,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard
District.
[FR Doc. E8-14954 Filed 7-1-08; 8:45 am]

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[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Rules and Regulations]
[Pages 62640-62641]
[FR Doc No: 2011-26093]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0454; FRL9477-5]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Determination of Attainment and Determination of Clean
Data for the Annual 1997 Fine Particle Standard for the Charleston Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is making two determinations regarding the Charleston,
West Virginia fine particulate matter (PM2.5) nonattainment
area (hereafter referred to as ``Charleston Area'' or ``Area''). First,
EPA is determining that the Area has attained the 1997 annual average
PM2.5 National Ambient Air Quality Standard (NAAQS). This
determination of attainment is based upon complete, quality-assured,
and certified ambient air monitoring data for the 2007-2009 period
showing that the Charleston Area has attained the 1997 annual
PM2.5 NAAQS and data available to date for 2010 in EPA's Air
Quality System (AQS) database that show the area continues to attain.
EPA's determination releases the Charleston Area from the requirements
to submit attainment demonstrations and associated reasonably available
control measures (RACM), a reasonable further progress (RFP) plan,
contingency measures, and other planning State Implementation Plan
(SIP) revisions related to attainment of the standard for so long as
the Area continues to attain the annual PM2.5 NAAQS. Second,
EPA is determining based on quality-assured and certified monitoring
data for the 2007-2009 monitoring period that the area has attained the
1997 annual PM2.5 NAAQS, by its applicable attainment date
of April 5, 2010.

DATES: Effective Date: This final rule is effective on November 10,
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2011-0454. All documents in the docket are listed in
the http://www.regulations.gov website. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Asrah Khadr,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. What actions is EPA taking?
II. What are the effects of these actions?
III. Statutory and Executive Order Reviews.

I. What actions is EPA taking?

    In accordance with section 179(c)(1) of the Clean Air Act (CAA), 42
U.S.C. section 7509(c)(1), and 40 Code of Federal Regulations (CFR)
section 51.1004(c), EPA is determining that the Charleston Area
(composed of Kanawha and Putnam Counties) has attained the 1997 annual
PM2.5 NAAQS. This action is based upon complete, quality-
assured, and certified ambient air monitoring data for the 2007-2009
monitoring period that show that the Area has monitored attainment of
the 1997 annual PM2.5 NAAQS and data available to date for
2010 that show the Area continues to attain. EPA is also determining,
in accordance with EPA's PM2.5 Implementation Rule of April
25, 2007 (72 FR 20664), that the Charleston Area has attained the 1997
annual PM2.5 NAAQS by its applicable attainment date of
April 5, 2010.
    EPA published in the Federal Register its proposed determination
for the Charleston Area on July 15, 2011 (76 FR 41739). A discussion of
the rationale behind this determination and the effect of the
determination was included in the notice of proposed rulemaking. EPA
received no comments on this notice of proposed rulemaking.

II. What are the effects of these actions?

    In determining the Charleston Area attained the 1997 annual
PM2.5 standard by its applicable attainment date (April 5,
2010), EPA has met its requirement pursuant to 179(c)(1) of the CAA to
make a determination based on the Area's air quality data as of the
attainment date whether the Area attained the standard by that date.
This action does not constitute a redesignation of the Area to
attainment of the 1997 annual PM2.5 NAAQS under section
107(d)(3) of the CAA. Further, this action does not involve approving
maintenance plans for the Area as required under section 175A of the
CAA, nor does it find that the Area has met all other requirements for
redesignation. Even after a determination of attainment by EPA, the
designation status of the Charleston Area is nonattainment for the 1997
annual PM2.5 NAAQS until such time as EPA determines that
the Area meets the CAA requirements for redesignation to

attainment and takes action to redesignate the Charleston Area.
    EPA's clean data determination releases the Charleston Area from
the requirement to submit an attainment demonstration and associated
RACM, a RFP plan, contingency measures, and any other planning SIPs
related to attainment of the 1997 annual PM2.5 NAAQS for so
long as the Charleston Area continues to attain the 1997 annual
PM2.5 NAAQS. See 40 CFR 51.1004(c).
    After a final clean data determination, if EPA determines that the
Area has violated the 1997 annual PM2.5 NAAQS, the basis for
the suspension of the specific requirements would no longer exist for
the Charleston Area and it would thereafter have to address the
applicable requirements. See 40 CFR 51.1004(c). The two actions
regarding the Charleston Area's attainment are only with respect to the
1997 annual PM2.5 NAAQS. Today's actions do not address the
24-hour PM2.5 NAAQS.

III. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 12, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action pertaining to the determination of attainment and
clean data determination for the Charleston Area may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Reporting and recordkeeping
requirements.

     Dated: September 27, 2011.
W. C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

     Authority:  42 U.S.C. 7401 et seq.

Subpart XX--West Virginia

0
2. In Sec.  52.2526, paragraph (e) is added to read as follows:

Sec.  52.2526  Control strategy: Particulate matter.

* * * * *
    (e) Determination of Attainment. EPA has determined, as of October
11, 2011, that based on 2007 to 2009 ambient air quality data, the
Charleston nonattainment area has attained the 1997 annual
PM2.5 NAAQS. This determination, in accordance with 40 CFR
52.1004(c), suspends the requirements for this area to submit an
attainment demonstration, associated reasonably available control
measures, a reasonable further progress plan, contingency measures, and
other planning SIPs related to attainment of the standard for as long
as this area continues to meet the 1997 annual PM2.5 NAAQS.

0
3. In Sec.  52.2527, paragraph (c) is added to read as follows:

Sec.  52.2527  Determination of attainment.

* * * * *
    (c) Based upon EPA's review of the air quality data for the 3-year
period 2007-2009, EPA determined that the Charleston fine particle
(PM2.5) nonattainment area attained the 1997 annual
PM2.5 National Ambient Air Quality Standard (NAAQS) by the
applicable attainment date of April 5, 2010. Therefore, EPA has met the
requirement pursuant to CAA section 179(c) to determine, based on the
area's air quality as of the attainment date, whether the area attained
the standard. EPA also determined that the Charleston PM2.5
nonattainment area is not subject to the consequences of failing to
attain pursuant to section 179(d).

[FR Doc. 2011-26093 Filed 10-7-11; 8:45 am]
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