[Federal Register Volume 72, Number 204 (Tuesday, October 23, 2007)]
[Rules and Regulations]
[Pages 59944-59947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20780]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. CGD01-07-145]
RIN 1625-AA00


Safety Zone: Army Corps of Engineers Blasting and Dredging 
Operation, Boston Harbor, Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing temporary safety zones in 
Boston Harbor, Boston, Massachusetts, for the Army Corps of Engineers 
(ACOE) blasting and dredging operation, to include the underwater 
blasting locations and the vessel transporting blasting material to and 
from the work sites, between October 5, 2007 and December 31, 2007. The 
zone temporarily closes all navigable waters of Boston Harbor within a 
four hundred (400) yard radius of the four underwater demolition sites 
located at approximate positions 42[deg]20'05.5'' N, 070[deg]59'53.9'' 
W, east-southeast of Castle Island; 42[deg]20'19.0'' N, 
070[deg]58'46.5'' W, President Roads Anchorage; 42[deg]21'15.80'' N, 
070[deg]55'51.95'' W, North Channel; 42[deg]22'03.70'' N, 
070[deg]55'18.83'' W, North Channel, while blasting operations are 
occurring and a moving

[[Page 59945]]

safety zone of one hundred yards around the M/V EMILY ROSE. The 
operations will only occur during daylight hours. The safety zone is 
necessary to protect the maritime public from the potential hazards 
posed by the blasting and dredging. Entry into this zone is prohibited 
during the closure period unless authorized by the Captain of the Port 
Boston, Massachusetts.

DATES: This rule is effective from 12:01 a.m. on October 5, 2007 until 
11:59 p.m. on December 31, 2007.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-07-145 and are available for 
inspection or copying at Sector Boston, 427 Commercial Street, Boston, 
MA, between 8 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Chief Eldridge McFadden, Sector 
Boston, Waterways Management Division, at (617) 223-5160.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. A notice and comment period 
was not held for this rulemaking because the logistics with respect to 
the blasting and dredging were not determined with sufficient time to 
draft and publish an NPRM. Delaying the necessary blasting operations 
to accommodate a notice and comment period would be contrary to the 
public interest.
    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 as immediate action is needed to 
protect vessels transiting the area from the hazards associated with 
underwater blasting and rock removal operations. Any delay encountered 
in this regulation's effective date would be contrary to the public 
interest since immediate action is necessary to protect persons, 
facilities, vessels and others in the maritime community from the 
safety hazards associated with the handling, detonation, and 
transportation of explosives.

Background and Purpose

    The Army Corps of Engineers is conducting a project to deepen 
Boston Harbor. Within the shipping channels there are several rock 
formations which are impeding the progress of the work. The Army Corps 
has contracted RDA Construction to perform the associated blasting and 
dredging to remove the rock. The explosives will be transferred to and 
from the blasting sites aboard the M/V EMILY ROSE. In order to protect 
the maritime public from the hazards associated with the loading, 
detonation, and transportation of explosives in and around the blasting 
areas, the Coast Guard is establishing safety zones around each of the 
four blasting sites and a moving safety zone around the vessel EMILY 
ROSE as it transits from the loading point on the Fore River in Quincy, 
Massachusetts to the blasting sites and back. Entry into these zones 
will be prohibited unless authorized by the Captain of the Port.

Discussion of Rule

    This rule establishes temporary safety zones on the navigable 
waters of Boston Harbor within a four hundred (400) yard radius of the 
various rock sites located in Boston Harbor at approximate positions 
42[deg]20'05.5'' N, 070[deg]59'53.9'' W, east-southeast of Castle 
Island; 42[deg]20'19.0'' N, 070[deg]58'46.5'' W, President Roads 
Anchorage; 42[deg]21'15.80'' N, 070[deg]55'51.95'' W, North Channel; 
and, 42[deg]22'03.70'' N, 070[deg]55'18.83'' W, North Channel while 
blasting and dredging is occurring. This regulation also establishes a 
moving safety zone on all navigable waters of the Fore River and Boston 
Harbor in a 100 yard radius around the M/V EMILY ROSE as it loads and 
unloads explosives and transits from the Fore River to the four 
demolition areas and from the demolition areas back to the Fore River 
shipyard. The explosives loading will occur at the Fore River shipyard 
wet dock in Quincy, Massachusetts. The explosives will be transported 
via vessel to the construction barges at the above noted positions 
where the blasting and dredging is occurring.
    This rule is effective from 12:01 a.m. EDT on October 5, 2007 until 
11:59 p.m. EST on December 31, 2007. Although the safety zone will be 
in effect for twelve weeks, it will only be enforced during actual 
transit and blasting times. Blasting will only occur during daylight 
hours.
    Marine traffic may transit safely outside of the zone during the 
enforcement period. Public notifications will be made prior to and 
during the enforcement period via safety marine information broadcasts 
and the event will be published in the Local Notice to Mariners. During 
the enforcement periods, entry into those zones by any vessel is 
prohibited unless specifically authorized by the Captain of the Port, 
Boston.
    Given the limited time-frame of the enforcement period of the zone, 
the small safety zone size and the short duration of the blasting 
events, the Captain of the Port does not anticipate any negative impact 
on vessel traffic due to this event. Blasting operations are only to 
occur during daylight, specifically between the hours of 6 a.m. and 4 
p.m. The moving safety zone around the EMILY ROSE will be enforced only 
during the loading, unloading and transit of explosives to the site and 
from the site back to shore with any unused explosives. Portions of the 
safety zones around the perimeter of the blasting work are located 
within the channel and may peripherally affect vessels transiting in or 
out of the port. However, the zone around the blasting worksite will be 
enforced only during the actual blasting times thus minimizing any 
adverse impact. Public notifications will be made during the entire 
effective period of this safety zone via marine information broadcasts 
and through local notice to mariners.

Regulatory Evaluation

    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.
    The Coast Guard expects the economic impact of this rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. Although this 
rule will prevent traffic from transiting a portion of Boston Harbor 
during the blasting and dredging operations, the effect of this rule 
will not be significant for several reasons: vessels, although excluded 
from the zone, will have sufficient navigable water to safely maneuver 
in all other waters of Boston Harbor surrounding the zone when blasting 
is occurring; and, when blasting operations are not occurring the zones 
will not be enforced thus allowing vessels to move within the areas 
designated by this rule; also, advance notifications will be made to 
the local maritime community by marine information broadcasts and Local 
Notice to Mariners allowing mariners to plan voyages accordingly.

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

[[Page 59946]]

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 affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in a portion of Boston Harbor during the effective 
period of this safety zone. For the reasons outlined in the Regulatory 
Evaluation section above, this safety zone will not have a significant 
economic impact on a substantial number of small entities.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
wants to assist small entities in understanding this rule so that they 
can better evaluate its effects on them and participate in the 
rulemaking process. If this rule will affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please call Chief 
Eldridge McFadden, Sector Boston, Waterways Management Division, at 
(617) 223-5160.
    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 affect 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 does not create an 
environmental risk to health or risk to safety that may 
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 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.

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 
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 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 (34)(g) of the Instruction, from further environmental 
documentation. This rule fits the category selected from paragraph 
(34)(g), as it establishes a safety zone. A final ``Environmental 
Analysis Check List'' and a final ``Categorical Exclusion 
Determination'' will be available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
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:


[[Page 59947]]


    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 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. Add temporary Sec.  165.T01-145 to read as follows:


Sec.  165.T-01-145  Safety Zone: Army Corps Underwater Rock Demolition, 
Boston Harbor, Boston, MA.

    (a) Location. The following areas are safety zones: (1) All 
navigable waters of the Fore River and Boston Harbor, from surface to 
bottom, within a four hundred (400) yard radius around the blasting and 
dredging sites located in Boston Harbor at approximate positions: 
42[deg]20'05.5'' N, 070[deg]59'53.9'' W, east-southeast of Castle 
Island; 42[deg]20'19.0'' N, 070[deg]58'46.5'' W, President Roads 
Anchorage; 42[deg]21'15.80'' N, 070[deg]55'51.95'' W, North Channel; 
and 42[deg]22'03.70'' N, 070[deg]55'18.83'' W, North Channel, while 
blasting operations are occurring. (2) All navigable waters within a 
one hundred (100) yard radius of the motor vessel EMILY ROSE while it 
is loading, transporting and unloading explosives.
    (b) Effective Date. This rule is effective from 12:01 a.m. on 
October 5, 2007 until 11:59 p.m. on December 31, 2007.
    (c) Definitions. The following definition applies to this section: 
Designated representative, means any commissioned, warrant, and petty 
officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and federal law enforcement vessels who 
have been authorized to act on the behalf of the Captain of the Port, 
Boston Harbor.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
Sec.  165.23 apply.
    (2) In accordance with the general regulations in section 165.23 of 
this part, entry into or movement within this zone by any person or 
vessel is prohibited unless authorized by the Captain of the Port 
(COTP), Boston or the COTP's designated representative.
    (3) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or the COTP's designated representative.
    (4) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or the COTP's designated representative to 
obtain permission by calling the Sector Boston Command Center at 617-
223-5761 or via VHF channel 16. Vessel operators given permission to 
enter or operate in the safety zone must comply with all directions 
given to them by the COTP or the COTP's designated representative.
    (e) Enforcement period. This section will be enforced only during 
daylight hours where blasting operations are being conducted and when 
the vessel EMILY ROSE is loading, transporting or unloading explosives.

    Dated: October 4, 2007.
Gail P. Kulisch,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. E7-20780 Filed 10-22-07; 8:45 am]
BILLING CODE 4910-15-P