[Federal Register Volume 82, Number 39 (Wednesday, March 1, 2017)]
[Rules and Regulations]
[Pages 12177-12180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03985]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2014-1037]
RIN 1625-AA00


Safety Zone: Eastport Breakwater Terminal, Eastport, Maine

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is extending the effective period of a safety 
zone in the vicinity of the Eastport Breakwater Terminal, Eastport, 
Maine. This safety zone was established on January 9, 2015 (80 FR 
1344). This rule will extend the

[[Page 12178]]

effective period of the existing temporary final rule from January 30, 
2017 until October 1, 2017. This rule will continue to restrict vessels 
from approaching within 100 yards of the eastern face of the Eastport 
Breakwater Terminal without authorization from the Captain of the Port 
(COTP) Sector Northern New England. This safety zone continues to be 
necessary due to the ongoing repairs to the breakwater following a 
partial collapse of the structure on December 4, 2014.

DATES: This rule is effective without actual notice from March 1, 2017 
until October 1, 2017. For the purposes of enforcement, actual notice 
will be used from the date the rule was signed, January 17, 2017, until 
March 1, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2014-1037 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 MSTC Chris Bains at Sector Northern New England; 
telephone (207) 347-5003, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
NPRM Notice of Proposed Rulemaking
TFR Temporary Final Rule
U.S.C. United States Code
USCG United States Coast Guard

II. Background Information and Regulatory History

    On January 9, 2015 we published a TFR entitled ``Safety Zone: 
Eastport Breakwater Terminal, Eastport, Maine'' in the Federal Register 
(80 FR 1344). The effective period for this rule was from December 12, 
2014 until on January 30, 2017. The Coast Guard is now extending the 
effective period of the safety zone in the vicinity of the Eastport 
Breakwater Terminal, Eastport, Maine until October 1, 2017.
    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 a NPRM with respect to this rule 
because publishing an NPRM would be impracticable and contrary to the 
public interest. The construction company was late in requesting an 
extension of the safety zone beyond the original construction 
completion date of January 30, 2017. As a result, the delay inherent in 
the NPRM process is contrary to the public interest and impracticable, 
as immediate action is needed to extend this safety zone in order to 
protect ports, waterways, and the maritime public.
    We are issuing this rule, and 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 reasons 
discussed above. For the same reasons discussed in the preceding 
paragraph, the Coast Guard finds that waiting 30 days to make this rule 
effective would be impracticable and contrary to the public interest.

III. Legal Authority and Need for Rule

    The legal basis for the temporary rule is 33 U.S.C. 1231. On 
December 4, 2014, the southwest portion of the Eastport Breakwater 
Terminal collapsed into the protected harbor shoreward of the 
Breakwater in Eastport, Maine. The catastrophic collapse resulted in 
several vessels being damaged or destroyed, and left the remaining 
breakwater structure at risk of further collapse. This safety zone was 
established based on the analysis of an independent engineering firm 
that determined the remaining portion of the breakwater did not have 
the required lateral strength, nor was it designed to hold the weight 
of the forces thrust upon it. As a result, the remaining portion of the 
breakwater could have collapsed without warning. The COTP determined 
that a safety zone was necessary to protect the public from the safety 
hazards created by this emergency and the construction of a replacement 
breakwater.
    In January 2015, contractors began working of the construction of a 
replacement breakwater. The COTP has determined that potential hazards 
associated with emergency repairs to the breakwater continue to be a 
safety concern. Construction of the replacement breakwater was 
originally scheduled to be completed by January 30, 2017. Significant 
delays in construction have resulted in an anticipated completion date 
in August 2017. To ensure the continued protection of personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone, the Coast Guard is extending the effective period of the 
safety zone in the vicinity of the Eastport Breakwater Terminal to 
October 1, 2017.

IV. Discussion of Rule

    For the reasons discussed above, the COTP is extending the period 
of a temporary safety zone in Eastport Harbor, ME. The safety zone will 
be bound inside an area within 4 points along the breakwater at 
44[deg]54'26'' N., 066[deg]59'00'' W., 44[deg]54'25'' N., 
066[deg]58'54'' W., 44[deg]54'19'' N., 066[deg]58'55'' W., 
44[deg]54'19'' N., 066[deg]59'01'' W. No vessel may enter, transit, 
moor, or anchor within this safety zone unless authorized by the COTP 
or designated representative.
    The COTP will cause public notifications to be made by all 
appropriate means including but not limited to Broadcast Notice to 
Mariners.

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.
    The Coast Guard determined that this rule is not a significant 
regulatory action for the following reasons: The safety zone will be 
relatively short in duration and it covers only a small portion of the 
navigable waterways. Vessels may transit the navigable waterway outside 
of the safety zone. Moreover, vessels desiring entry into the safety 
zone may be authorized to do so by the COTP or designated 
representative. Advanced public notifications will also be made to the 
local maritime community by Broadcast Notice to Mariners.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider

[[Page 12179]]

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 
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 the extension of the effective period of a safety zone 
for ten months. 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 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.

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.T01-1037 to read as follows:


Sec.  165.T01-1037  Safety Zone: Eastport Breakwater Terminal, 
Eastport, Maine.

    (a) Location. The following area is a safety zone: All navigable 
waters, from surface to bottom, within the following position(s) 
44[deg]54'26'' N., 066[deg]59'00'' W., 44[deg]54'25'' N., 
066[deg]58'54'' W., 44[deg]54'19'' N., 066[deg]58'55'' W., 
44[deg]54'19'' N., 066[deg]59'01'' W., (NAD). Friar Roads, Eastport, 
Maine. All positions are approximate.
    (b) Effective Period. This rule is effective and enforced from 3:00 
p.m. on January 30, 2017 to 11:59 p.m. October 1, 2017.
    (c) Notification. Coast Guard Sector Northern New England will give 
actual notice to mariners for the purpose of enforcement of this 
temporary safety zone. Also, Sector Northern New England will notify 
the public to the greatest extent possible of any period in which the 
Coast Guard will suspend enforcement of this safety zone.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into or movement within this zone is prohibited unless 
authorized 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 designated representative 
may be on board a Coast Guard vessel, or on board a federal, state, or 
local agency vessel that is authorized to act in support of the Coast 
Guard.

[[Page 12180]]

    (4) Upon being hailed by a U.S. Coast Guard vessel or his 
designated representatives by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed.
    (5) Vessel operators desiring to enter or operate within this 
safety zone shall contact the Captain of the Port or his designated 
representatives via VHF channel 16 to obtain permission to do so.

    Dated: January 17, 2017.
M.A. Baroody,
Captain, U.S. Coast Guard, Captain of the Port, Northern New England.
[FR Doc. 2017-03985 Filed 2-28-17; 8:45 am]
BILLING CODE 9110-04-P