[Federal Register Volume 81, Number 40 (Tuesday, March 1, 2016)]
[Rules and Regulations]
[Pages 10501-10504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04475]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0127]
RIN 1625-AA00


Safety Zone; Sunken Vessel, North Channel, Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a 250 yard temporary safety 
zone within Sector Boston's Captain of the Port (COTP) Zone for a 
sunken vessel located in Boston Harbor's North Channel. The safety zone 
will be in effect while the sunken vessel remains on the sea floor to 
facilitate safe navigation, survey operations, and salvage operations. 
This action is necessary to ensure that vessels that transit the area 
are not endangered by hazards associated with a sunken vessel. 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 without actual notice from March 1, 2016 
through March 31, 2016. For the purposes of enforcement, actual notice 
will be used from February 16, 2016 through March 1, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0127 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 on this rule, 
call or email Mr. Mark Cutter, Coast Guard Sector Boston Waterways 
Management Division, U.S. Coast Guard; telephone 617-223-4000, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
USCG United States Coast Guard

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 an NPRM with respect to this rule 
because doing so would be impracticable and contrary to the public 
interest. There is insufficient time to publish an NPRM and solicit 
comments from the public before establishing a safety zone to address 
an existing hazard to navigation. The nature of the navigational hazard 
requires the immediate establishment of a safety zone.
    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. Delaying the effective 
date of this rule would be contrary to public interest because 
immediate action is needed to respond to the potential safety hazards 
associated with removing cargo from the vessel and refloating the 
vessel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP has determined that potential hazards associated with a 
sunken vessel in a Federal Navigation Deep Draft Channel will be a 
safety concern for vessels that may transit the North Channel. This 
rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone until the 
exact location can be determined, and for the safety of vessels and 
personnel involved in survey and salvage operations. This rule will 
remain in effect for the time stated herein but will be cancelled if 
response activities are finished before March 31, 2016. The preliminary 
estimate for completion of the survey to determine exact location is 
February 17, 2016. Once the exact location is determined, the COTP will 
further evaluate if the channel can be opened to vessel traffic. If the 
sunken vessel is located outside of the North Channel, the safety may 
still be needed during times of salvage operations. This temporary 
final rule provides for an extended enforcement period in case of 
unforeseen circumstances that prevent the contractors from completing 
the work within their initial estimated timeline.

IV. Discussion of the Rule

    The sunken vessel addressed in this rule is the tug Emily Anne. The 
tug Emily Anne sank at in the early morning hours of February 16, 2016 
in approximate position; 42[deg]22.4' N., 70[deg]54.77' W. This rule 
establishes a safety zone until the exact position of the sunken vessel 
can be determined and during survey or salvage operations. The safety 
zone will cover all navigable waters from surface to bottom, within a 
250 yard radius of position 42[deg]22.4' N., 70[deg]54.77' W. This 
position is located by buoy 2 Boston Harbor's North Channel. The 
duration of the safety zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters until the exact 
position can be determined and during survey and salvage operations. If 
the sunken vessel is determined to be located outside the North 
Channel, the COTP will reopen the North Channel to vessel traffic and 
use the safety zone during times of survey or salvage operations if 
needed. The owner of the vessel is in the process of arranging salvage 
arrangements. No vessel or person will be permitted to enter the safety 
zone without obtaining permission from the COTP or a designated 
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive order 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 time-of-year of the safety zone. A majority of 
vessel traffic will be able to transit Boston Harbor's South Channel. 
The larger deep draft vessels cannot transit the South Channel and they 
will be affected by this safety zone until an exact location of the 
sunken vessel can be determined. If the sunken vessel is located 
outside the channel, vessels will be able to transit in the channel. 
Moreover, the Coast Guard will issue Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone.

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

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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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will 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.
    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 a 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 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. 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 will 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 (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 a safety zone possibly lasting more than 31 days that 
will prohibit entry into the North Channel. It is categorically 
excluded from further review under paragraph 34(g) of Figure 2-1 of the 
Commandant Instruction. In accordance with Coast Guard NEPA 
Implementing Procedures, while environmental impacts were considered, a 
written environmental analysis checklist supporting this determination 
and a Categorical Exclusion Determination will be available in the 
Federal Register docket for public view.'' 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 continues to read 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.T01-0127 to read as follows:


Sec.  165.T01-0127  Safety Zone: Sunken Vessel, North Channel, Boston, 
MA

    (a) Location. The following area is a temporary safety zone: All 
U.S. navigable waters from surface to bottom, within a 250 yard radius 
of position 42[deg]22.4' N., 70[deg]54.77' W.
    (b) Regulations. While this safety zone is being enforced, the 
following regulations, along with those contained in 33 CFR 165.23, 
apply:
    (1) No person or vessel may enter or remain in this safety zone 
without the permission of the Captain of the Port (COTP), Sector 
Boston.
    (2) Any person or vessel permitted to enter the safety zone shall 
comply with the directions and orders of the COTP or the COTP's 
representatives. Upon being hailed by siren, radio, flashing lights, or 
other means, the operator of a vessel within the zone shall proceed as 
directed. Any person or vessel within the security zone shall exit the 
zone when directed by the COTP or the COTP's representatives.
    (3) To obtain permissions required by this regulation, individuals 
may reach the COTP or a COTP representative via VHF channel 16 or 617-
223-5757 (Sector Boston Command Center) to obtain permission.
    (4) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    (c) COTP Representative. The COTP's representative may be any Coast 
Guard commissioned, warrant, or petty officer or any Federal, state, or 
local law enforcement officer who has been designated by the COTP to 
act on the

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COTP's behalf. The COTP's representative may be on a Coast Guard 
vessel, a Coast Guard Auxiliary vessel, federal, state or local law 
enforcement or safety vessel, or a location on shore.
    (d) Effective and enforcement period. The safety zone described in 
paragraph (a) of this section will be enforced from February 16, 2016 
until March 31, 2016, unless terminated sooner by the COTP.
    (e) Notification. The Coast Guard will notify the public of the 
enforcement of this safety zone by Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone.

    Dated: February 16, 2016.
C.C. Gelzer,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2016-04475 Filed 2-29-16; 8:45 am]
BILLING CODE 9110-04-P