[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Rules and Regulations]
[Pages 31862-31864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11826]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2016-0026]
RIN 1625-AA00


Safety Zone, Block Island Wind Farm; Rhode Island Sound, RI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a 500-yard safety zone around 
each of five locations where the Block Island Wind Farm (BIWF) wind 
turbine generator (WTG) towers, nacelles, blades and subsea cables will 
be installed in the navigable waters of Rhode Island Sound, RI, from 
May 15 to October 31, 2016. These safety zones are intended to 
safeguard mariners from the hazards associated with construction of the 
BIWF. This regulation prohibits vessels from entering into, transiting 
through, mooring, or anchoring within these safety zones while 
construction vessels and associated equipment are working on-site 
(i.e., within 500 yards of a WTG) at one or more of the BIWF WTG sites, 
unless authorized by the Captain of the Port (COTP), Southeastern New 
England or the COTP's designated representative.

DATES: This rule is effective without actual notice from May 20, 2016 
through October 31, 2016. For purposes of enforcement, actual notice 
will be used from May 15, 2016 until May 20, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0026 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 about this rule, 
call or email Mr. Edward G. LeBlanc, Chief of the Waterways Management 
Division at Coast Guard Sector Southeastern New England, telephone 401-
435-2351, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Acronyms

BIWF Block Island Wind Farm
CFR Code of Federal Regulations
COTP Captain of The Port
DHS Department of Homeland Security
DWW Deepwater Wind
FR Federal Register
NPRM Notice of proposed rulemaking
NTM Notice To Mariners
RIDEM Rhode Island Department of Environmental Management
Sec.  Section
TFR Temporary Final Rule
U.S.C. United States Code
WTG Wind Turbine Generator

II. Background Information and Regulatory History

    On February 16, 2016, the Coast Guard published an NPRM in the 
Federal Register titled Safety Zone, Block Island Wind Farm; Rhode 
Island Sound, RI, 81 FR 7718, proposing to create BIWF safety zones 
effective April 1, 2016. There we stated why we issued the NPRM, and 
invited comments on our proposed regulatory action related to BIWF 
construction. Two comments were received requesting an extension of the 
initial comment period that ended on March 17, 2016. On April 4, 2016, 
we published a Proposed Rule in the Federal Register, 81 FR 19097, 
opening a second comment period that closed on April 17, 2016.
    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. The original effective 
date of the safety zones created by this rule was April 1, 2016. The 
revised date is six weeks later, May 15, 2016. Construction and cable-
laying vessels are already preparing to work in the vicinity of the 
BIWF. The safety of life and navigation for construction and support 
vessels, BIWF workers, mariners, and the boating public during 
construction activities in the vicinity of the BIWF in Rhode Island 
Sound, RI would be negatively impacted by a delay in the effective date 
of this TFR.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP Southeastern New England has determined that potential 
hazards associated with construction of the BIWF from May 15 to October 
31, 2016 will be a safety concern for anyone within a 500-yard radius 
of any of the five WTG sites when and where construction vessels are 
present. The purpose of this rule is to ensure safety of vessels and 
the navigable waters in the safety zone during this construction 
period.

IV. Discussion of Comments, Changes, and the Rule

    Twelve comments were received. As noted above, the Coast Guard 
provided two distinct periods for the public to submit comments. The 
first comment period, announced in our NPRM published in the Federal 
Register on February 16, 2016, (81 FR 7718) was from February 16 to 
March 17, 2016. The second comment period, announced in our Proposed 
Rule published in the Federal Register on April 4, 2016, (81 FR 19097) 
was from April 4-17, 2016. We received nine comments in the initial 
comment period. Two requested additional time to submit comments.
    Three comments supported the safety zones proposed in the NPRM. One 
comment suggested that the Coast Guard also prohibit anchoring outside 
the safety zone areas. Another comment

[[Page 31863]]

suggested extending the effective dates of the TFR to allow for 
construction delays. A third comment suggested that measures be 
implemented to prevent vessels near the safety zones from drifting into 
the safety zones.
    Four comments opposed the safety zones, claiming the zones will 
cause irreparable economic harm to commercial fishing interest that 
normally fish in the vicinity of the BIWF unless adequately compensated 
by Deepwater Wind (DWW), the developers of the BIWF.
    Three comments were received during the second comment period. One 
comment supported the safety zones as a necessary safety measure with 
minimal adverse environmental impacts. Two comments requested 
clarification of our NPRM. The Rhode Island Department of Environmental 
Management (RIDEM) asked us to clarify that the safety zones are 500 
yards in radius centered on each BIWF WTG, not 500 yards diameter. The 
safety zones created by this TFR are five individual safety zones, each 
500 yards in radius centered on each BIWF WTG. RIDEM and another 
comment also requested that we confirm that each safety zone will only 
be enforced (i.e., entry to non-construction vessels will be 
prohibited) when construction vessels are on-site (within 500 yards of 
a WTG). DWW intends to have vessels on site at only one or two WTG 
sites simultaneously, not all five concurrently. As written, this TFR 
will be enforced at each WTG site only when BIWF construction vessels 
are on-site at a particular WTG. For example, if BIWF construction 
vessels are at WTG site 1, vessels must remain at least 500 yards from 
WTG 1. But vessels may approach WTGs 2-5 as close as desired that is 
consistent with prudent seamanship and navigation safety. As another 
example, if BIWF construction vessels are at WTG sites 3 and 4, then 
waters at sites 1, 2, and 5 are completely accessible to mariners, and 
so on.
    Additionally, RIDEM requested that the Coast Guard consult with DWW 
to reduce the effective period of the safety zones created by this TFR 
to ``minimize economic hardship on members of the RI fishing 
industry.'' The Coast Guard consulted DWW on April 19, 2016 to discuss 
the length of the effective period. This TFR shortens the effective 
period by six weeks and clarifies that the safety zones will only be 
enforced at those individual WTG sites where construction vessels are 
on-scene, not all five sites simultaneously, which minimizes the times 
and areas that may impact the RI fishing industry.
    RIDEM also requested that five days public notice be provided to 
inform the public of the specific WTG(s) at which construction 
activities would be taking place. DWW publishes a daily mariner 
notification at http://dwwind.com/biwf-construction/, which will 
include a 5-day forecast of locations of construction vessels and 
activities. Additionally, RIDEM has a fishery liaison officer whose 
duties included keeping the RI fishing community advised of BIWF 
construction activities.
    The Coast Guard considered all these comments and provided the 
clarification above, but otherwise made no changes to the regulatory 
text of this rule from the proposed rule in the NPRM, other than to 
change the commencement date of the effective period of the TFR from 
April 1 to May 15, 2016.
    This rule establishes a 500-yard safety zone around each of five 
locations where the BIWF WTG towers, nacelles, blades, and subsea 
cables will be installed in the navigable waters of the Rhode Island 
Sound, RI, from May 15 to October 31, 2016.
    These safety zones are intended to safeguard mariners from the 
hazards associated with construction of the BIWF. These safety zones 
are also of similar dimensions and duration as safety zones established 
in 2015 for the same purpose, during the first phase of construction of 
the BIWF. Vessels will be prohibited from entering into, transiting 
through, mooring, or anchoring within these safety zones at only those 
WTG sites where construction vessels and associated equipment are 
present unless authorized by the COTP, Southeastern New England or the 
COTP's designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders 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 the time-of-day of the safety zones. The safety 
zones are 500 yards in radius, centered on each of five WTG locations, 
and enforced at those WTG sites where construction vessels or 
construction activities are taking place. Also, construction of the 
five WTG sites is sequential, not concurrent, so that construction 
vessels and activities (and hence, safety zones) are present at only 
one or two sites at any given time. Vessels will be able to safely 
transit around these safety zones. The Coast Guard will publicize these 
safety zones in advance via the Local Notice to Mariners Deepwater Wind 
will update its Web site daily to keep mariners informed of what safety 
zones, if any, may be enforced. Lastly, safety zones of the same size 
and duration were implemented for the first phase of the BIWF 
construction in 2015 with no significant impact to mariners or small 
entities.

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 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 received no comments from the Small Business 
Administration on this rulemaking. 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 
these safety zones may be small entities, for the reasons stated in 
section V.A above this rule would 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.

[[Page 31864]]

    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 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 would 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 would 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 (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 safety zones that would prohibit entry 
within 500 yards of each WTG site of the BIWF while construction 
vessels and associated equipment are present at that particular WTG. It 
is categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist supporting this determination and a Categorical Exclusion 
Determination will be 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.

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 reads 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.T0026 to read as follows:


Sec.  165.T0026  Safety Zone, Block Island Wind Farm; Rhode Island 
Sound, RI

    (a) Location. Areas within a 500-yard radius of the following five 
positions are safety zones:

------------------------------------------------------------------------
           Platform                   Latitude            Longitude
------------------------------------------------------------------------
WTG 1.........................  41[deg]7'32.74'' N.   71[deg]30'27.04''
                                                      W.
WTG 2.........................  41[deg]7'11.57'' N.  71[deg]30'50.22''
                                                      W.
WTG 3.........................  41[deg]6'52.96'' N.  71[deg]31'16.18''
                                                      W.
WTG 4.........................  41[deg]6'36.54'' N.  71[deg]31'44.62''
                                                      W.
WTG 5.........................  41[deg]6'22.79'' N.  71[deg]32'15.50''
                                                      W.
------------------------------------------------------------------------

    (b) Enforcement period. From May 15 to October 31, 2016, vessels 
will be prohibited from entering into these safety zones, when 
enforced, during construction activity of the five Block Island Wind 
Farm (BIWF) wind turbine generators (WTG) located in the positions 
listed in 2(a) above.
    (c) Definitions. The following definitions apply to this section:
    Designated Representative. A ``designated representative'' is any 
Coast Guard commissioned, warrant or petty officer of the U.S. Coast 
Guard who has been designated by the Captain of the Port, Sector 
Southeastern New England (COTP), to act on his or her behalf.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23 as well as the following regulations apply to the safety zones 
established in conjunction with the construction of the BIWF; Rhode 
Island Sound, RI. These regulations may be enforced for the duration of 
construction.
    (2) Vessels must not enter into, transit through, moor, or anchor 
in these safety zones during periods of enforcement unless authorized 
by the COTP, Southeastern New England or the COTP's designated 
representative. Vessels permitted to transit must operate at a no-wake 
speed, in a manner which will not endanger construction vessels or 
associated equipment.
    (3) Failure to comply with a lawful direction from the COTP, 
Southeastern New England or the COTP's designated representative may 
result in expulsion from the area, citation for failure to comply, or 
both.

    Dated: April 21, 2016.
J.T. Kondratowicz,
Captain, U.S. Coast Guard, Captain of the Port Southeastern New 
England.
[FR Doc. 2016-11826 Filed 5-19-16; 8:45 am]
 BILLING CODE 9110-04-P