[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Rules and Regulations]
[Pages 45571-45573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19518]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0575]
RIN 1625-AA00


Safety Zone; Boston Harbor's Improvement Dredging Project, 
Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing two temporary safety zones on 
the navigable waters of Boston Harbor. The first safety zone will be 
around any vessel, barge, or dredging equipment actively engaged in 
dredging operations, drilling, or blasting. The second safety zone will 
be around any blasting worksites. These safety zones are needed to 
protect personnel, vessels, and the marine environment from the 
potential hazards created by the dredging, drilling, and blasting 
operations in support of the U.S. Army Corps of Engineers Boston 
Harbor's Improvement Dredging Project. When enforced, this regulation 
prohibits persons and vessels from being in the safety zone unless 
authorized by the Captain of the Port Boston or a designated 
representative.

DATES: This rule is effective from September 10, 2018 through August 
31, 2023.
    Comments and related material must be received by the Coast Guard 
during the effective period on or before December 10, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0575 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule. You may submit 
comments identified by docket number USCG-2018-0575 using the Federal 
eRulemaking Portal at http://www.regulations.gov. See the ``Public 
Participation and Request for Comments'' portion for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mark Cutter, Waterways Management Division, U.S. Coast 
Guard Sector Boston, telephone 617-223-4000, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
TIR Temporary Interim Rule
NPRM Notice of Proposed Rule Making
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On June 1, 2018, U.S. Army Corps of Engineers issued a notice 
allowing the Joint Venture of Cashman Dredging Inc. and Dutra Group to 
proceed with the improvement-dredging project of Broad Sound North 
Channel, Boston's Inner Harbor Main Ship Channel, Conley Terminal 
including the turning basin or ``MSC Notch,'' and President Roads 
Anchorage. The project consists of deepening Broad Sound North Channel 
to 51 feet below the surface, and Boston's Inner Harbor Main Ship 
Channel, Conley Terminal including the turning basin or ``MSC Notch,'' 
and President Roads Anchorage each to 47 feet below the surface.
    The project includes dredging approximately 11.7 million cubic 
yards of silt, blue clay, till and weathered rock from the Broad South 
North Channel, Boston's Inner Harbor Main Ship Channel, Conley 
Terminal, and President Roads Anchorage. Most of the material dredged 
will be placed at the Massachusetts Bay Disposal Site (MBDS) 
approximately 20 miles offshore of Boston Harbor. A small fraction of 
the material dredged will be placed as a cap to the Main Ship Channel 
Confined Aquatic Disposal Cell, just downstream of the inner confluence 
of the Chelsea and Mystic Rivers. The initial phase of the dredge 
operation involves using mechanical dredges and does not involve any 
type of blasting or drilling operation. At some point, once the silt, 
blue clay, till and weathered rock have been removed, blasting or 
drilling may be needed to remove the hard rock. Whether blasting or 
drilling will be required, it will not be known until the top material 
has been removed and the contractor can locate the hard rock spots. The 
dredge operation has begun and will continue for 24 hours a day, seven 
days a week for approximately four years. The Coast Guard is publishing 
this rule to be effective, and enforceable, through August 31, 2023, in 
case the project is delayed due to unforeseen circumstances. If the 
project is completed prior to August 31, 2023, enforcement of the 
safety zones will be suspended and notice given via Broadcast Notice to 
Mariners, Local Notice to Mariners, or both.
    The Coast Guard is issuing this temporary interim 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 doing so would be impracticable and 
contrary to the public interest. The notice allowing the dredging 
project to proceed and providing dates for the project was only 
recently finalized and provided to the Coast Guard, and timely action 
is needed to respond to the potential safety hazards associated with 
this dredging project. The late finalization of project details did not 
give the Coast Guard enough time to publish a NPRM, take public 
comments, and issue a final rule before dredging operations begin. It 
would be impracticable and contrary to the public interest to publish a 
NPRM because a safety zone must be established as soon as possible to 
protect the safety of the waterway users, construction crew, and other 
personnel associated with the dredging project. A delay of the dredging 
project to accommodate a full notice and comment period would delay 
necessary operations, result in increased costs, and delay the date 
when the dredging project is expected to be completed and reopen Boston 
Harbor for normal operations.
    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. For reasons stated in the preceding paragraph, 
delaying the effective date of this rule would be impracticable and 
contrary to the public interest because timely action is needed to 
respond to the potential safety

[[Page 45572]]

hazards associated with the dredging project.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231.
    The COTP Boston has determined that potential hazards exist 
associated with a dredging project that has already commenced, and will 
continue through August 31, 2023. This rule is needed to protect 
personnel, vessels, and the marine environment on the navigable waters 
of Broad Sound North Channel, Boston's Inner Harbor Main Ship Channel, 
Conley Terminal including the turning basin or ``MSC Notch,'' and 
President Roads Anchorage during the dredging project.

IV. Discussion of Comments, Changes, and the Rule

    This rule establishes two safety zones that will continue through 
August 31, 2023.
    The first safety zone will have a 100-yard radius centered on any 
vessel, barge, or dredging equipment while actively engaged in dredging 
operations, drilling, or blasting. If blasting is needed for hard rock, 
the second safety zone will have a 500-yard radius centered on the 
worksite on each day of blasting, to be established once explosives are 
laid and ready for detonation, and subsequently suspended once a 
successful detonation has been confirmed. The Coast Guard will notify 
the public and local mariners of this 500-yard safety zone through 
appropriate means, which may include, but are not limited to, 
publication in the Local Notice to Mariners and Broadcast Notice to 
Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

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 13771 directs agencies to control 
regulatory costs through a budgeting process. 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 (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive order 13771.
    This regulatory action determination is based on the following 
reasons: (1) These safety zones will only impact a small designated 
area of the waterway at any given time; (2) vessels wishing to transit 
the waterway will have sufficient room to transit around the the safety 
zones; (3) dredging vessel(s) conducting operations will move out of 
the channel for deep draft vessels that need to pass through that area 
and deep draft vessel traffic will be well coordinated though daily 
communications with U.S. Army Corps of Engineers, Contractor, Ship 
Pilots, and the U.S. Coast Guard; (4) local lobstermen can still set 
pots in some areas of Boston harbor; (5) the 500-yd safety zone around 
blasting operations will only be enforced when blasting is in progress 
for short durations and with substantial public notice days in advance 
of enforcement through a Broadcast Notice to Mariners (BNM) via marine 
channel 16 (VHF-FM) of the exact location. The Coast Guard will place a 
notice in the Local Notice to Mariner (LNM); issue Broadcast Notice to 
Mariners (BNM) via marine channel 16 (VHF-FM), Safety Marine 
Information Port Bulletin, discuss updates at the monthly Boston Port 
Operators Group (POG) meeting, and at the Massachusetts Bay Harbor 
Safety Committee meetings.

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 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.
    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 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 temporary interim rule would 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 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.

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

[[Page 45573]]

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 
Directive 023-01, which guides the Coast Guard in complying with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and 
have made a preliminary determination 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 two safety zones on the navigable waters of Broad 
Sound North Channel, Boston's Inner Harbor Main Ship Channel, Conley 
Terminal including the turning basin or ``MSC Notch,'' and President 
Roads Anchorage: (1) A 100-yard radius centered on any vessel, barge, 
or dredging equipment while actively engaged in dredging operations, 
drilling, or blasting. (2) If blasting is needed for hard rock, the 
second safety zone will have a 500-yard radius centered on the worksite 
on each day of blasting, to be established once explosives are laid and 
ready for detonation, and subsequently suspended once a successful 
detonation has been confirmed. Normally such actions are categorically 
excluded from further review under paragraph L60(a) of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary 
Record of Environmental Consideration for Categorically Excluded 
Actions is 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 temporary interim 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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this TIR as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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.T01-0575 to read as follows:


Sec.  165.T01-0575   Safety Zone; Boston Harbor's Improvement Dredging 
Project, Boston, MA.

    (a) Location. The following areas are safety zones: All navigable 
waters from surface to bottom, within a 100-yard radius centered on any 
vessel, barge or dredging equipment while actively engaged in dredging 
operations, drilling, or blasting. All navigable waters from surface to 
bottom, within a 500-yard radius centered on the blasting worksite 
while setting up for blasting, during blasting, and in the immediate 
aftermath.
    (b) Definitions. As used in this section:
    (1) Designated representative means any Coast Guard commissioned, 
warrant, petty officer, or any federal, state, or local law enforcement 
officer who has been designated by the Captain of the Port (COTP) 
Boston, to act on his or her behalf. The designated representative may 
be on an official patrol vessel or 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.
    (2) Official patrol vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP Boston to enforce this section.
    (c) Enforcement periods. This section is enforceable 24 hours a day 
through August 31, 2023. When enforced as deemed necessary by the COTP 
Boston, vessels will be prohibited from entering this safety zone 
unless granted permission from the COTP Boston or the COTP's designated 
representative.
    (d) Regulations. When this safety zone is 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 COTP Boston or the COTP's designated 
representatives. However, any person or vessel permitted to enter the 
safety zone must comply with the directions and orders of the COTP 
Boston or the COTP's designated representatives.
    (2) To obtain permission required by this regulation, individuals 
may reach the COTP Boston or a COTP designated representative via 
Channel 16 (VHF-FM) or 617-223-5757 (Sector Boston Command Center).
    (3) Upon being hailed by a U.S. Coast Guard vessel by radio, siren, 
flashing lights, or other means, the operator of a vessel must proceed 
as directed.
    (e) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232.

    Dated: September 5, 2018.
Eric. J. Doucette,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2018-19518 Filed 9-7-18; 8:45 am]
 BILLING CODE 9110-04-P