[Federal Register Volume 77, Number 189 (Friday, September 28, 2012)]
[Rules and Regulations]
[Pages 59551-59554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23855]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2012-0767]
RIN 1625-AA00
Safety Zone, Changes to Original Rule; Boston Harbor's Rock
Removal Project, Boston Inner Harbor, Boston, MA
AGENCY: Coast Guard, DHS.
[[Page 59552]]
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing three temporary safety zones
within Sector Boston's Captain of the Port (COTP) Zone for the
drilling, blasting, and dredging operation on the navigable waters of
Boston Inner Harbor, in the main ship channel near Castle Island. These
temporary safety zones are necessary to enhance navigation, vessel
safety, marine environmental protection, and provide for the safety of
life on the navigable waters during the drilling, blasting and dredging
operations in support of the U.S. Army Corps of Engineers rock removal
project. Entering into, transiting through, mooring or anchoring within
these safety zones is prohibited unless authorized by the COTP or the
designated on-scene representative.
DATES: This rule is effective with actual notice from September 4,
2012, until September 28, 2012. This rule is effective in the Code of
Federal Regulations from September 28, 2012 until September 30, 2012.
ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2012-0767. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' Box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with the rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation, West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary final rule, call or email Mr. Mark Cutter, Coast Guard Sector
Boston Waterways Management Division, telephone 617-223-4000, email
[email protected]. If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port
A. Regulatory History and Information
On August 23, 2012, the Coast Guard published a temporary final
rule establishing a safety zone for rock removal operations in Boston
Harbor, entitled ``Safety Zone; Boston Harbor's Rock Removal Project,
Boston Inner Harbor, Boston, MA'' (77 FR 50916). This new rule retains
the original provisions of that temporary final rule, but adds two
additional safety zones necessary for the safety of life at sea.
The Coast Guard is issuing this temporary final 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. Publication of an NPRM would be impracticable
because critical information regarding the scope of the event was not
received from the U.S. Army Corps of Engineers until July 15, 2012,
providing insufficient time for the Coast Guard to solicit public
comments before the start date of the project. A delay or cancellation
of the project in order to accommodate a notice and comment period
would be contrary to the public interest because immediate action is
necessary to ensure the safety of the personnel involved in the rock
removal project and any public vessels in the vicinity of the drilling,
dredging and blasting operations being conducted. For the safety
concerns noted, it is in the public interest to have these regulations
in effect during the rock 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. For the reasons stated above, any
delay in the effective date of this rule would expose personnel
involved in the rock removal project and any public vessels in the
vicinity to any hazards associated with the drilling, dredging and
blasting operations.
B. Basis and Purpose
Starting from August 13, 2012, daily from 5 a.m. to 8 p.m. until
September 30, 2012, the contractor Burnham Associates Inc. has been
conducting drilling, blasting and dredging operations in support of the
U.S. Army Corps of Engineers Boston Harbors main ship channel rock
removal project.
The U.S. Army Corps of Engineers discussed the rock removal project
at the Boston's Port Operators Group monthly meeting on July 15, 2012.
The Coast Guard hosted a meeting on August 2, 2012 inviting
stakeholders from the maritime industry in Boston Harbor to discuss and
mitigate any impacts this project will have on maritime community. The
feedback from the meeting was that these safety zones will have minimum
impact on local mariners based on the location and the fact that the
majority of boating traffic will be able to transit around the safety
zones and that the vessels involved in the rock removal operations will
move as needed for deep draft vessels.
The legal basis for the temporary rule is 33 U.S.C. 1226, 1231, 46
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295,
116 Stat. 2064; and Department of Homeland Security Delegation No.
0170.1, which collectively authorize the Coast Guard to define safety
zones.
C. Discussion of Final Rule
The COTP Boston has determined that hazards associated with the
drilling, dredging and blasting operations pose a significant risk to
safety of life on navigable waters. Three safety zones will be
established to help ensure the safety of the personnel involved in the
rock removal project and any public vessels in the vicinity, and help
minimize associated risks with this project. For those reasons, safety
zones are being issued to provide for the safety of life on the
navigable waters during the drilling, blasting and dredging operations
in support of the U.S. Army Corps of Engineers rock removal project.
The first safety zone will be a 100-yard radius around the workboat
``MANTIS'' while transiting to and from the work site with explosives
onboard. The second safety zone will be a 100-yard radius centered on
the various worksites while actively engaged in drilling, blasting and
dredging operations are on-going. The final safety zone will be a 500-
yard radius centered on the worksite on each day of blasting, to be
established once explosives are laid and ready for detonation, and
subsequently suspended once a successful detonation has been confirmed.
These safety zones will be enforced only while the vessel is on scene
conducting operations involved in the rock removal project in Boston
Harbor's main ship near Castle Island.
D. 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.
[[Page 59553]]
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) Executive Order 12866 or under
section 1 of Executive Order 13563. The Office of Management and Budget
has not reviewed it under that Order.
The Coast Guard has determined that this rule is not a significant
regulatory action for the following reasons: the Coast Guard expects
minimal adverse impact to mariners from the activation of the zones;
vessels have sufficient room to transit around the safety zones, with
exception given to the final zone, which will stop traffic for short
periods of time each day; the vessel conducting the operations will
move out of the channel for deep draft vessels that need to pass
through that area and vessels may enter or pass through the affected
waterway with the permission of the Captain of the Port (COTP) or the
COTP's designated on-scene representative; and notification of these
safety zones will be made to mariners through the local Notice to
Mariners, Broadcast Notice to Mariners, and by Safety Marine
Information Broadcasts in advance of the event.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended requires federal agencies to consider the potential impact of
regulations on small entitles during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule would not have a
significant economic impact on a substantial number of small entities
for the following reasons: Vessels have sufficient room to transit
around the safety zone; the vessel conducting the operations will move
out of the channel for deep draft vessels that need to pass through
that area and vessels may enter or pass through the affected waterway
with the permission of the Captain of the Port (COTP) or the COTP's
designated on-scene representative; notification of the safety zone
will be made to mariners through the Local Notice to Mariners,
Broadcast Notice to Mariners, and by Safety Marine Information
Broadcasts well in advance of the event.
3. Assistance for Small Entities
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,
above.
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.
4. 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).
5. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on 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 determined
that it does not have implications for federalism.
6. 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.
7. 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 expenditure, we do discuss the effects of this rule elsewhere in
this preamble.
8. Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
9. 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.
10. 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 does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
11. Indian Tribal Governments
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.
12. Energy Effects
This action is not a ``Significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.
13. Technical Standards
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
14. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
[[Page 59554]]
environment. This rule involves the establishment of three safety
zones. This rule is categorically excluded from further review under,
paragraph 34(g) of figure 2-1 of the Commandant Instruction. An
environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.
List of Subjects in 33 CFR Part 165
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Revise Sec. 165.T01-0767 to read as follows:
Sec. 165.T01-0767 Safety Zone; Boston Harbor's Rock Removal Project,
Boston Inner Harbor, Boston, MA.
(a) General. Three temporary safety zones are established for the
Boston Harbor's Rock Removal Project as follows:
(1) Location. (i) All navigable waters from surface to bottom,
within a 100-yard radius around the vessel or vessels conducting
drilling, blasting, dredging, and other related operations related to
rock removal in Boston's Inner Harbor near Castle Island.
(ii) All navigable waters from surface to bottom, with a 100-yard
radius around the vessel ``MANTIS'' while transporting explosives to
and from the work site.
(iii) All navigable waters from surface to bottom, with a 500-yard
radius around the blasting site while setting up for blasting,
blasting, and in the immediate aftermath.
(2) Definitions. For the purposes of this section, ``Designated on-
scene representative'' is any Coast Guard commissioned, warrant, or
petty officer who has been designated by the Captain of the Port Boston
(COTP) to act on the COTP's behalf. The designated representative may
be on an Official Patrol Vessel. An ``Official Patrol Vessel'' may
consist of any Coast Guard, Coast Guard Auxiliary, state, or local law
enforcement vessels assigned or approved by the COTP or the designated
on-scene representative 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 this
regulation.
(3) Enforcement Period. This rule will be enforced daily from 5
a.m. to 8 p.m. from September 4, 2012, until September 30, 2012.
(b) Regulations. (1) The general regulations contained in 33 CFR
165.23, as well as the following regulations, apply.
(2) No vessels, except for participating or public vessels, will be
allowed to enter into, transit through, or anchor within these safety
zones without the permission of the COTP or the designated on-scene
representative.
(3) All persons and vessels shall comply with the instructions of
the COTP or the designated on-scene representative. Upon being hailed
by a U.S. Coast Guard vessel by siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
(4) Vessel operators desiring to enter or operate within the
regulated area shall contact the COTP or the designated on-scene
representative via VHF channel 16 or 617-223-3201 (Sector Boston
command Center) to obtain permission.
Dated: September 4, 2012.
J.C. O'Connor III,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2012-23855 Filed 9-27-12; 8:45 am]
BILLING CODE 9110-04-P