[Federal Register Volume 75, Number 119 (Tuesday, June 22, 2010)]
[Rules and Regulations]
[Pages 35299-35301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15006]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0519]
RIN 1625-AA00


Safety Zone; Ship Repair in Penobscot Bay, ME

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Stena Drilling and Cianbro companies will replace three 
bow thrusters on the vessel STENA FORTH, a 748-foot drill ship, while 
at anchor in Penobscot Bay, Maine. The nature of the repairs require 
water depths of at least 120 feet in a sheltered environment, 
precluding the use of anchorages and limiting alternative locations 
along the East Coast where the repairs could be made. This temporary 
safety zone is necessary to ensure the safety of the ship's crew and 
the maritime public by prohibiting all unauthorized vessels and 
waterway users from entering within a 100 yard radius around the STENA 
FORTH while it is at anchor for repairs.

DATES: This rule is effective in the CFR on June 22, 2010 until 11:59 
p.m. on July 5, 2010. This rule is effective with actual notice for 
purposes of enforcement from 12:01 a.m. on June 15, 2010 until 11:59 
p.m. on July 5, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0519 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0519 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Junior Grade Laura van der 
Pol, Waterways Management Division at Coast Guard Sector Northern New 
England, telephone 207-741-5421, e-mail [email protected]. If 
you have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    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 an 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 publishing an NPRM is 
impractical and contrary to public interest. The Coast Guard was only 
recently made aware of the details of this repair, including the 
proposed anchorage location and anticipated ship arrival date, which 
were finalized just two weeks in advance. Thus, the Coast Guard did not 
have sufficient time to issue an NPRM and hold a comment period for 
this rulemaking. The expeditious implementation of this rule is in the 
public interest because it will help to ensure the safety of those 
involved in replacing three of the ship's thrusters. Additionally, the 
safety zone will define the area impacted by the repair operations for 
other waterway users who wish to operate in all other areas of the bay. 
Finally, delaying the effective date by first publishing a NPRM and 
holding a comment period would be contrary to the rule's objectives of 
ensuring safety of life on the navigable waters while these repairs are 
taking place, as immediate action is needed to protect persons and 
vessels from the hazards associated with repair operations conducted on 
an anchored vessel.
    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. In addition to the reasons stated 
above, any delay in the effective date of this regulation would be 
contrary to the public interest as immediate action is necessary to 
protect the maritime community from the hazards associated with the 
repair operation. A delay or cancellation of the ship's repairs to 
accommodate a 30-day waiting period would be contrary to public 
interest as it would put lives of maritime community members at risk.

Basis and Purpose

    Ship repairs are usually performed in a drydock, pier-side, or in 
an established general anchorage, barring the need for public notice or 
regulation as ships are typically well-removed from high-density 
traffic areas. For this project however, the technical parameters for 
replacing three bow thrusters on the 748-foot drill ship STENA FORTH 
necessitate water depths in excess of 120 feet, depths which are not 
available pier-side or in established anchorages along the East Coast. 
This regulation will establish a temporary safety zone in a 100-yard 
radius around the STENA FORTH while it is at anchor in Penobscot Bay to 
make repairs.
    For the duration of the repairs, the following vessels will be in 
use within the safety zone surrounding the STENA FORTH: A crane barge, 
a barge to offload wastewater, two tug boats, one harbor skiff, and a 
safety dive-boat. Due to the location, heavy machinery involved, 
frequent dive operations, and nature of the work, the Coast Guard has 
determined that the ship repairs could pose a risk to waterway users 
and the repair crews if waterway use around the STENA FORTH is not 
restricted. Possible hazards include the risk of diver injury or death 
from near or actual contact with vessels traversing through the safety 
zone; the risk of injury to waterway users and repair crewmembers 
resulting from interference with the sensitive, heavy equipment 
operations; and damage or loss of fishing gear anchored within the 
safety zone. In order to protect the safety of all waterway users, 
including repair crews, this temporary rule establishes a safety zone 
for the duration of the repair work in the area immediately around the 
STENA FORTH as described in the List of Subjects.
    This rule prevents vessels and persons from entering, transiting, 
mooring or anchoring within the area specifically designated as a 
safety zone during the period of enforcement unless authorized by the 
Captain of the Port, his designated representative, or on-scene patrol 
personnel. On-scene patrol

[[Page 35300]]

personnel may be comprised of local, state or federal officials 
authorized to act in support of the Coast Guard. In addition, members 
of the Coast Guard Auxiliary or Cianbro repair crew may be present to 
inform vessel operators of this regulation.

Discussion of Rule

    This temporary rule creates a safety zone for all navigable waters 
in a 100-yard radius around the drill ship STENA FORTH while at anchor 
in approximate location 44[deg]06'54'' N., 069[deg]02'54'' W., one mile 
northeast of Rockland Harbor Breakwater Light (LLNR 4130), and 
approximately one and a half miles north of Owl's Head, Maine. The 
technical constraints inherent in replacing the STENA FORTH's three bow 
thrusters severely limit the number of suitable locations where the 
repairs could be safely conducted. Of the six possible bays on the East 
Coast, Penobscot Bay, Maine was the most desirable due to the proximity 
to shore, relatively sheltered environment, and typical June weather 
conditions. The anchorage position was chosen based on the conditions 
needed to make the repairs (water depth, currents) as well as with 
consideration to the typical use of the navigable waters east of 
Rockland Harbor in terms of deep draft, fishing, and recreational 
vessel traffic. While every effort has been made to minimize the impact 
to waterway users, the safety zone is needed to protect the repair 
crews and maritime community from the dangers inherent in the repair 
operations.
    During the enforcement period of the safety zone, persons and 
vessels will be prohibited from entering, transiting, anchoring, 
mooring, or remaining within the zone unless specifically authorized by 
the Captain of the Port or his designated representatives. The Coast 
Guard may be assisted by other federal, state, and local agencies in 
the enforcement of this safety zone. In addition, members of the Coast 
Guard Auxiliary and Cianbro repair crew may be present to inform vessel 
operators of this regulation.
    The Coast Guard determined that this safety zone will not have a 
significant impact on the maritime public due to the temporary nature 
and limited size of the safety zone as vessels may transit all 
navigable waters outside the safety zone. Advanced public notifications 
will be made to the local maritime community through Local Notice to 
Mariners and Broadcast Notice to Mariners.

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.
    The Coast Guard has determined that this rule is not a significant 
regulatory action for the following reasons: The safety zone will be of 
limited duration, it covers only a small portion of the navigable 
waterways, and the STENA FORTH's anchored position is designed to 
avoid, to the extent possible, deep draft, fishing, and recreational 
boating traffic routes.

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 affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit, fish, or anchor in the designated safety zone during the 
enforcement period stated in the List of Subjects.
    The safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: The 
safety zone will be of limited size; vessels that can safely do so may 
navigate in all other portions of the waterway except for the area 
designated as a safety zone; and vessels wishing to transit through the 
safety zone may do so with the permission of the Captain of the Port or 
his designated representative. Additionally, before the effective 
period, the Coast Guard will issue notice of the time and location of 
the safety zone through a Local Notice to Mariners and Broadcast Notice 
to Mariners. The Coast Guard has also conducted outreach with state and 
local agencies, including the Maine Department of Marine Resources and 
fishing associations in Penobscot Bay, to enable fishermen and vessel 
operators to adjust their plans as needed in anticipation of the STENA 
FORTH's arrival to anchorage.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure,

[[Page 35301]]

we do discuss the effects of this rule elsewhere in this preamble.

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.

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 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 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves establishing a 
temporary safety zone. An environmental analysis checklist and a 
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 record 
keeping requirements, Security measures, and 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:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 Sec.  165.T01-0519 to read as follows:


Sec.  165.T01-0519  Safety zone; Ship repair in Penobscot Bay, ME.

    (a) Location. The following area is a safety zone: All waters 
within a 100 yard radius of the drill ship STENA FORTH while at anchor 
in Penobscot Bay, Maine, in approximate position: 44[deg]06'54'' N., 
069[deg]02'54'' W., one mile northeast of Rockland Harbor Breakwater 
Light (LLNR 4130), and approximately one and a half miles north of 
Owl's Head, Maine.
    (b) Notification. Coast Guard Sector Northern New England will 
cause notice of the enforcement of this temporary safety zone to be 
made by all appropriate means to effect the widest publicity among the 
affected segments of the public, including publication in the Local 
Notice to Mariners and Broadcast Notice to Mariners.
    (c) Effective Period. This safety zone is effective from 12:01 a.m. 
on June 15, 2010, until 11:59 p.m. on July 5, 2010.
    (d) Enforcement Period. The safety zone in this section will be 
enforced while the drill ship STENA FORTH is at anchor in Penobscot 
Bay, Maine.
    (e) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply. During the enforcement period, entry into, transiting, 
mooring, anchoring or remaining within this safety zone is prohibited 
unless authorized by the Captain of the Port or his designated 
representatives.
    (2) This temporary safety zone is closed to all vessel traffic, 
except as may be permitted by the Captain of the Port or his designated 
representative. Vessel operators given permission to enter or operate 
in the safety zone must comply with all directions given to them by the 
Captain of the Port or his designated representatives.
    (3) The ``designated representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
Captain of the Port to act on his behalf. The on-scene representative 
may be on a Coast Guard vessel, a Coast Guard Auxiliary vessel, or 
onboard a local or state agency vessel that is authorized to act in 
support of the Coast Guard. In addition, members of the Coast Guard 
Auxiliary or Cianbro repair crew may be present to inform vessel 
operators of this regulation.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port or his designated 
representative by telephone at 207-767-0303 or via VHF radio channel 16 
to obtain permission to do so.

    Dated: June 9, 2010.
B.S. Gilda,
Commander, U.S. Coast Guard, Acting, Captain of the Port Sector 
Northern New England.
[FR Doc. 2010-15006 Filed 6-21-10; 8:45 am]
BILLING CODE 9110-04-P