[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Rules and Regulations]
[Pages 31862-31864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11826]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2016-0026]
RIN 1625-AA00
Safety Zone, Block Island Wind Farm; Rhode Island Sound, RI
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a 500-yard safety zone around
each of five locations where the Block Island Wind Farm (BIWF) wind
turbine generator (WTG) towers, nacelles, blades and subsea cables will
be installed in the navigable waters of Rhode Island Sound, RI, from
May 15 to October 31, 2016. These safety zones are intended to
safeguard mariners from the hazards associated with construction of the
BIWF. This regulation prohibits vessels from entering into, transiting
through, mooring, or anchoring within these safety zones while
construction vessels and associated equipment are working on-site
(i.e., within 500 yards of a WTG) at one or more of the BIWF WTG sites,
unless authorized by the Captain of the Port (COTP), Southeastern New
England or the COTP's designated representative.
DATES: This rule is effective without actual notice from May 20, 2016
through October 31, 2016. For purposes of enforcement, actual notice
will be used from May 15, 2016 until May 20, 2016.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0026 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call or email Mr. Edward G. LeBlanc, Chief of the Waterways Management
Division at Coast Guard Sector Southeastern New England, telephone 401-
435-2351, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Acronyms
BIWF Block Island Wind Farm
CFR Code of Federal Regulations
COTP Captain of The Port
DHS Department of Homeland Security
DWW Deepwater Wind
FR Federal Register
NPRM Notice of proposed rulemaking
NTM Notice To Mariners
RIDEM Rhode Island Department of Environmental Management
Sec. Section
TFR Temporary Final Rule
U.S.C. United States Code
WTG Wind Turbine Generator
II. Background Information and Regulatory History
On February 16, 2016, the Coast Guard published an NPRM in the
Federal Register titled Safety Zone, Block Island Wind Farm; Rhode
Island Sound, RI, 81 FR 7718, proposing to create BIWF safety zones
effective April 1, 2016. There we stated why we issued the NPRM, and
invited comments on our proposed regulatory action related to BIWF
construction. Two comments were received requesting an extension of the
initial comment period that ended on March 17, 2016. On April 4, 2016,
we published a Proposed Rule in the Federal Register, 81 FR 19097,
opening a second comment period that closed on April 17, 2016.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for making it effective less than 30
days after publication in the Federal Register. The original effective
date of the safety zones created by this rule was April 1, 2016. The
revised date is six weeks later, May 15, 2016. Construction and cable-
laying vessels are already preparing to work in the vicinity of the
BIWF. The safety of life and navigation for construction and support
vessels, BIWF workers, mariners, and the boating public during
construction activities in the vicinity of the BIWF in Rhode Island
Sound, RI would be negatively impacted by a delay in the effective date
of this TFR.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP Southeastern New England has determined that potential
hazards associated with construction of the BIWF from May 15 to October
31, 2016 will be a safety concern for anyone within a 500-yard radius
of any of the five WTG sites when and where construction vessels are
present. The purpose of this rule is to ensure safety of vessels and
the navigable waters in the safety zone during this construction
period.
IV. Discussion of Comments, Changes, and the Rule
Twelve comments were received. As noted above, the Coast Guard
provided two distinct periods for the public to submit comments. The
first comment period, announced in our NPRM published in the Federal
Register on February 16, 2016, (81 FR 7718) was from February 16 to
March 17, 2016. The second comment period, announced in our Proposed
Rule published in the Federal Register on April 4, 2016, (81 FR 19097)
was from April 4-17, 2016. We received nine comments in the initial
comment period. Two requested additional time to submit comments.
Three comments supported the safety zones proposed in the NPRM. One
comment suggested that the Coast Guard also prohibit anchoring outside
the safety zone areas. Another comment
[[Page 31863]]
suggested extending the effective dates of the TFR to allow for
construction delays. A third comment suggested that measures be
implemented to prevent vessels near the safety zones from drifting into
the safety zones.
Four comments opposed the safety zones, claiming the zones will
cause irreparable economic harm to commercial fishing interest that
normally fish in the vicinity of the BIWF unless adequately compensated
by Deepwater Wind (DWW), the developers of the BIWF.
Three comments were received during the second comment period. One
comment supported the safety zones as a necessary safety measure with
minimal adverse environmental impacts. Two comments requested
clarification of our NPRM. The Rhode Island Department of Environmental
Management (RIDEM) asked us to clarify that the safety zones are 500
yards in radius centered on each BIWF WTG, not 500 yards diameter. The
safety zones created by this TFR are five individual safety zones, each
500 yards in radius centered on each BIWF WTG. RIDEM and another
comment also requested that we confirm that each safety zone will only
be enforced (i.e., entry to non-construction vessels will be
prohibited) when construction vessels are on-site (within 500 yards of
a WTG). DWW intends to have vessels on site at only one or two WTG
sites simultaneously, not all five concurrently. As written, this TFR
will be enforced at each WTG site only when BIWF construction vessels
are on-site at a particular WTG. For example, if BIWF construction
vessels are at WTG site 1, vessels must remain at least 500 yards from
WTG 1. But vessels may approach WTGs 2-5 as close as desired that is
consistent with prudent seamanship and navigation safety. As another
example, if BIWF construction vessels are at WTG sites 3 and 4, then
waters at sites 1, 2, and 5 are completely accessible to mariners, and
so on.
Additionally, RIDEM requested that the Coast Guard consult with DWW
to reduce the effective period of the safety zones created by this TFR
to ``minimize economic hardship on members of the RI fishing
industry.'' The Coast Guard consulted DWW on April 19, 2016 to discuss
the length of the effective period. This TFR shortens the effective
period by six weeks and clarifies that the safety zones will only be
enforced at those individual WTG sites where construction vessels are
on-scene, not all five sites simultaneously, which minimizes the times
and areas that may impact the RI fishing industry.
RIDEM also requested that five days public notice be provided to
inform the public of the specific WTG(s) at which construction
activities would be taking place. DWW publishes a daily mariner
notification at http://dwwind.com/biwf-construction/, which will
include a 5-day forecast of locations of construction vessels and
activities. Additionally, RIDEM has a fishery liaison officer whose
duties included keeping the RI fishing community advised of BIWF
construction activities.
The Coast Guard considered all these comments and provided the
clarification above, but otherwise made no changes to the regulatory
text of this rule from the proposed rule in the NPRM, other than to
change the commencement date of the effective period of the TFR from
April 1 to May 15, 2016.
This rule establishes a 500-yard safety zone around each of five
locations where the BIWF WTG towers, nacelles, blades, and subsea
cables will be installed in the navigable waters of the Rhode Island
Sound, RI, from May 15 to October 31, 2016.
These safety zones are intended to safeguard mariners from the
hazards associated with construction of the BIWF. These safety zones
are also of similar dimensions and duration as safety zones established
in 2015 for the same purpose, during the first phase of construction of
the BIWF. Vessels will be prohibited from entering into, transiting
through, mooring, or anchoring within these safety zones at only those
WTG sites where construction vessels and associated equipment are
present unless authorized by the COTP, Southeastern New England or the
COTP's 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. Executive order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has not been designated
a ``significant regulatory action,'' under Executive order 12866.
Accordingly, it has not been reviewed by the Office of Management and
Budget.
This regulatory action determination is based on the size,
location, duration, and the time-of-day of the safety zones. The safety
zones are 500 yards in radius, centered on each of five WTG locations,
and enforced at those WTG sites where construction vessels or
construction activities are taking place. Also, construction of the
five WTG sites is sequential, not concurrent, so that construction
vessels and activities (and hence, safety zones) are present at only
one or two sites at any given time. Vessels will be able to safely
transit around these safety zones. The Coast Guard will publicize these
safety zones in advance via the Local Notice to Mariners Deepwater Wind
will update its Web site daily to keep mariners informed of what safety
zones, if any, may be enforced. Lastly, safety zones of the same size
and duration were implemented for the first phase of the BIWF
construction in 2015 with no significant impact to mariners or small
entities.
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 received no comments from the Small Business
Administration on this rulemaking. 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
these safety zones may be small entities, for the reasons stated in
section V.A above this rule would 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.
[[Page 31864]]
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 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 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. 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 would 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
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 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 safety zones that would prohibit entry
within 500 yards of each WTG site of the BIWF while construction
vessels and associated equipment are present at that particular WTG. It
is categorically excluded from further review under paragraph 34(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Categorical Exclusion
Determination will be 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.
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 reads as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.T0026 to read as follows:
Sec. 165.T0026 Safety Zone, Block Island Wind Farm; Rhode Island
Sound, RI
(a) Location. Areas within a 500-yard radius of the following five
positions are safety zones:
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Platform Latitude Longitude
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WTG 1......................... 41[deg]7'32.74'' N. 71[deg]30'27.04''
W.
WTG 2......................... 41[deg]7'11.57'' N. 71[deg]30'50.22''
W.
WTG 3......................... 41[deg]6'52.96'' N. 71[deg]31'16.18''
W.
WTG 4......................... 41[deg]6'36.54'' N. 71[deg]31'44.62''
W.
WTG 5......................... 41[deg]6'22.79'' N. 71[deg]32'15.50''
W.
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(b) Enforcement period. From May 15 to October 31, 2016, vessels
will be prohibited from entering into these safety zones, when
enforced, during construction activity of the five Block Island Wind
Farm (BIWF) wind turbine generators (WTG) located in the positions
listed in 2(a) above.
(c) Definitions. The following definitions apply to this section:
Designated Representative. A ``designated representative'' is any
Coast Guard commissioned, warrant or petty officer of the U.S. Coast
Guard who has been designated by the Captain of the Port, Sector
Southeastern New England (COTP), to act on his or her behalf.
(d) Regulations. (1) The general regulations contained in 33 CFR
165.23 as well as the following regulations apply to the safety zones
established in conjunction with the construction of the BIWF; Rhode
Island Sound, RI. These regulations may be enforced for the duration of
construction.
(2) Vessels must not enter into, transit through, moor, or anchor
in these safety zones during periods of enforcement unless authorized
by the COTP, Southeastern New England or the COTP's designated
representative. Vessels permitted to transit must operate at a no-wake
speed, in a manner which will not endanger construction vessels or
associated equipment.
(3) Failure to comply with a lawful direction from the COTP,
Southeastern New England or the COTP's designated representative may
result in expulsion from the area, citation for failure to comply, or
both.
Dated: April 21, 2016.
J.T. Kondratowicz,
Captain, U.S. Coast Guard, Captain of the Port Southeastern New
England.
[FR Doc. 2016-11826 Filed 5-19-16; 8:45 am]
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