[Federal Register Volume 77, Number 164 (Thursday, August 23, 2012)]
[Rules and Regulations]
[Pages 50916-50919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20828]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0767]
RIN 1625-AA00


Safety Zone; Boston Harbor's Rock Removal Project, Boston Inner 
Harbor, Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone 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. This 
temporary safety zone is 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 
this safety zone is prohibited unless authorized by the COTP or the 
designated on-scene representative.

DATES: This rule is effective in the CFR on August 23, 2012, until 
September 30, 2012, and will be enforced daily from 5 a.m. to 8 p.m. 
This rule is effective with actual notice for purposes of enforcement 
beginning on August 13, 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

[[Page 50917]]

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

    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 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. The U.S. 
Army Corps of Engineers also 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 this safety zone 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 zone and that 
the vessels involved in the rock removal operations will move as needed 
for deep draft vessels. 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. 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 hazards associated with the 
drilling, dredging and blasting operations.

B. Basis and Purpose

    The legal basis for the temporary rule is 33 U.S.C. 1231, 46 U.S.C. 
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 
6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of 
Homeland Security Delegation No. 0170.1, which collectively authorize 
the Coast Guard to define safety zones.
    The safety zone is 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.

C. Discussion of Final Rule

    Starting August 13, 2012, daily from 5 a.m. to 8 p.m. until 
September 30, 2012, the contractor Burnham Associates Inc. will be 
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 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. Establishing a safety zone around 
the vessel conducting the drilling, blasting, and dredging will help 
ensure the safety of the personnel involved in the rock removal project 
and any public vessels in the vicinity, and help minimize the 
associated risks with this project. This safety zone will establish a 
100-yard radius around the vessel conducting the drilling, blasting and 
dredging operations in various locations in Boston Harbor's main ship 
channel near Castle Island. To ensure public safety, the safety zone 
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.

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 zone; 
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; and notification of the safety zone will be made to 
mariners through the local Notice to Mariners, Broadcast Notice to 
Mariners 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 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 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.

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    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 
environment. This rule involves the establishment of a safety zone. 
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, 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:  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. Add 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. A temporary safety zone is established for the Boston 
Harbor's Rock Removal Project as follows:
    (1) Location. 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.
    (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 effective from August 13, 
2012 until September 30, 2012 and will be enforced daily from 5 a.m. to 
8 p.m.
    (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 the safety 
zone without the

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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: August 13, 2012.
J.C. O'Connor, III,
Captain, U.S. Coast Guard,
    Captain of the Port Boston.
[FR Doc. 2012-20828 Filed 8-22-12; 8:45 am]
BILLING CODE 9110-04-P