[Federal Register Volume 79, Number 32 (Tuesday, February 18, 2014)]
[Rules and Regulations]
[Pages 9086-9088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03464]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2014-0010]
RIN 1625-AA00


Safety Zone: Maintenance Dredging 35-Foot Channel and Rock 
Removal; Portland Harbor, Portland, ME

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone around 
the blasting and dredging project taking place in Portland Harbor 
between Portland and South Portland, Maine. This safety zone is 
required to protect users of the waterway from the safety hazards 
associated with this blasting and dredging project, which is being 
undertaken to increase the water depth of the main channel to 35 feet. 
Entry into this safety zone is prohibited unless authorized by the 
Captain of the Port (COTP) Northern New England.

DATES: This rule is effective without actual notice from February 18, 
2014 until March 31, 2014. For the purposes of enforcement, actual 
notice will be used from the date the rule was signed, February 6, 
2014, until February 18, 2014.
    This rule will be enforced at various dates and times to be 
determined (TBD) to accommodate dredging and blasting operations, and 
will be advertised via Local Notice to Mariners and Broadcast Notice to 
Mariners.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2014-0010]. 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 this 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 rule, 
call or email Lieutenant Junior Grade Elizabeth Gunn, U.S. Coast Guard, 
Sector Northern New England, Waterways Management Division, via 
telephone at (207) 767-0398 or email at [email protected]. If 
you have questions on viewing or submitting material to the docket, 
call Barbara Hairston, Program Manager, Docket Operations, via 
telephone at (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register

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 United States Code 
(USC) 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 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 the Army Corps of Engineers (ACOE) 
notified the Coast Guard of the blasting operations on January 8, 2014. 
This notice was not received in sufficient time for the Coast Guard to 
solicit public comments before the start of blasting operations. 
Consequently, waiting for a comment period to run before publishing 
this rule would inhibit the Coast Guard's ability to keep the boating 
public safe and, thus, would be impracticable and contrary to the 
public interest. Because blasting and dredging operations must be 
completed by March 15, 2014, in accordance with Maine Department of 
Environmental Protection (DEP) permitting, it would not be feasible for 
the project to be delayed or rescheduled. Immediate action is needed to 
protect the maritime public from the potential hazards associated with 
blasting operations, which include the use of explosives below the 
waterline. This regulation is necessary to ensure the immediate safety 
of users of the waterway.
    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 same reasons discussed in 
the preceding paragraph, delaying the effective date of this rule would 
be impracticable and contrary to the public interest.

B. Basis and Purpose

    The legal basis for the temporary rule is 33 USC 1226, 1231, 46 USC 
Chapter 701, 3306, 3703; 50 USC 191, 195; 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.
    As part of the Maintenance Dredging 35-Foot Channel and Rock 
Removal Project, the Army Corps of Engineers must blast and dredge in 
portions of the Portland Harbor near Portland and South Portland, 
Maine. Due to inherent dangers associated with blasting and dredging 
operations, a safety zone is necessary to help ensure the safety of the 
maritime public operating near the work site. The potential explosive 
arc for each blasting site has been calculated to be approximately 600 
feet.
    The project is also required to comply with applicable state laws.

[[Page 9087]]

C. Discussion of the Final Rule

    The Coast Guard is establishing a temporary safety zone on the 
navigable waters, from the surface to the bottom of Portland Harbor, in 
the vicinity of the Army Corps of Engineers' Maintenance Dredging 35-
Foot Channel and Rock Removal Project work site between Portland and 
South Portland, Maine, from the Portland Fish Pier at 43[deg]39'03'' N, 
70[deg]15'09'' W across to the Coast Guard Base Pier at 43[deg]38'47'' 
N, 70[deg]14'53'' W then downstream to the Maine State Pier at 
43[deg]39'20'' N, 70[deg]14'48'' W and across to Portland Pipeline Pier 
1 at 43[deg]39'11'' N, 70[deg]14'35'' W. This safety zone will 
encompass multiple blasting sites within a concentrated area of 
Portland Harbor. The safety zone will be enforced only within 600 feet 
of each blast site, and only for a short duration of time prior to, 
during, and after each detonation. Notice of the safety zone 
enforcement will be advertised via Local Notice to Mariners, Safety 
Marine Information Broadcast (SMIB) broadcast over Channel 16, and by 
actual notice on site. Vessels will be able to transit areas outside of 
the 600 yard radius surrounding each blast site. In addition, vessels 
may be able to transit through the enforced portions of the safety zone 
with permission of the COTP or his designated representative. To 
request permission to transit within the safety zone, the COTP can be 
contacted via telephone at (207) 767-0303, or by radio on VHF Marine 
Band Radio, channel 16. The safety zone will be in effect from 12:01 
a.m. on February 10, 2014 to 11:59 p.m. on March 31, 2014.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and 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) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. The Coast Guard has made 
this determination based primarily on the fact that maritime traffic 
will be allowed to transit the safety zones with permission from the 
COTP so there should be little to no economic impact. Further, the 
safety zone will only be enforced for short durations before and during 
the actual blasting activity.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 USC 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 certifies under 5 USC 605(b) that this rule 
will not have a significant economic impact on a substantial number of 
small entities. The following entities may be affected by this rule, 
some of which may be small entities: The owners and operators of 
vessels intending to operate, transit, or anchor in a portion of 
Portland Harbor during the effective times of the safety zone. The 
safety zone will not have a significant impact on a substantial number 
of small entities for the following reasons. The enforcement area of 
the safety zone will be limited to those areas where actual blasting is 
taking place. Vessels will be able to transit all other areas inside 
the safety zone where active blasting activities are not taking place. 
The Coast Guard will make enforcement notifications via maritime 
advisories so mariners can adjust their plans accordingly. The safety 
zone will only be enforced for short durations before and during the 
actual blasting activity.

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 will 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 will not call for a 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 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 determined 
that this rule 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 
INTFORMATION 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 an 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.

[[Page 9088]]

10. Protection of Children From Environmental Health Risks

    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 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 regulations regarding safety zones. 
This rule is categorically excluded from further review under paragraph 
34(g) of Figure 2-1 of the Commandant Instruction. This rule involves 
creation of a temporary safety zone for a limited period of time. An 
environmental analysis checklist supporting this determination 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 
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 USC 1226, 1231; 46 USC 701, 3306, 3703; 50 USC 
191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 
Stat. 2064; Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0010 to read as follows:


Sec.  165.T01-0010  Safety Zone; Maintenance Dredging 35-Foot Channel 
and Rock Removal; Portland Harbor, Portland, ME.

    (a) Location. The following area is a safety zone: All navigable 
waters, from the surface to the bottom of Portland Harbor, from the 
Portland Fish Pier at 43[deg]39'03'' N, 70[deg]15'09'' W across to the 
Coast Guard Base Pier at 43[deg]38'47'' N, 70[deg]14'53'' W then 
downstream to the Maine State Pier at 43[deg]39'20'' N, 70[deg]14'48'' 
W and across to Portland Pipeline Pier 1 at 43[deg]39'11'' N, 
70[deg]14'35'' W.
    (b) Definitions. The following definitions apply to this section:
    (1) ``Designated representative'' means any U.S. Army Corps of 
Engineers personnel, any commissioned, warrant, or petty officer of the 
U.S. Coast Guard, and any member of the Coast Guard Auxiliary who has 
been designated by the Captain of the Port (COTP) Sector Northern New 
England, to act on the COTP's behalf.
    (2) ``Official patrol vessel'' means any Coast Guard, Coast Guard 
Auxiliary, Army Corp of Engineers, state, or local law enforcement 
vessel assigned or approved by the COTP.
    (c) Effective Period. This section is effective from February 10, 
2014 to March 31, 2014.
    (d) Regulations. (1) The general regulations in 33 CFR 165.23 
apply.
    (2) Entry, transit, diving, dredging, dumping, fishing, trawling, 
conducting salvage operations, remaining or anchoring within a 600 foot 
radius of blasting operations within the safety zone is prohibited 
unless authorized by the COTP.
    (3) Upon being hailed by a U.S. Coast Guard vessel, U.S. Army Corps 
of Engineers vessel or a designated representative, by siren, radio, 
flashing light, or other means, the operator of a vessel shall proceed 
as directed.
    (4) Vessel operators desiring to enter, transit, dive, dredge, 
dump, fish, trawl, conduct salvage operations, remain within, or anchor 
within the safety zone must contact the COTP or the designated 
representative via the Sector Northern New England Command Center by 
VHF channel 16 or by phone at (207) 767-0303.
    (5) 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 designated representative.

    Dated: February 6, 2014.
A.J. Ceraolo,
Commander, U.S. Coast Guard Acting Captain of the Port Sector Northern 
New England.
[FR Doc. 2014-03464 Filed 2-14-14; 8:45 am]
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