[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Rules and Regulations]
[Pages 69328-69330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27195]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0838]
RIN 1625-AA00


Temporary Safety Zone for Explosive Dredging; Tongass Narrows, 
Ketchikan, AK

AGENCY: Coast Guard, DHS.

ACTION:  Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain waters of the Tongass Narrows. This action is necessary to 
provide for the safety of life on all navigable waters of the Tongass 
Narrows, from shoreline to shoreline, within a 500-yard radius of the 
Pinnacle Rock before, during, and after the scheduled operation between 
December 16, 2019 and January 31, 2020. This temporary final rule 
prohibits persons and vessels from being in the safety zone unless 
authorized by the Captain of the Port Southeast Alaska or a designated 
representative.

DATES: This rule is effective without actual notice from December 18, 
2019 through January 31, 2020. For the purposes of enforcement, actual 
notice will be used from December 16, 2019 through December 18, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0838 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 LT Jesse Collins, Sector Juneau Waterways Management 
Division, U.S. Coast Guard; telephone 907-463-2846, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Southeast Alaska
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    Contract Drilling & Blasting LLC notified the Coast Guard that it 
will be conducting explosive dredging from 30 minutes after sunrise to 
one hour before sunset between December 16, 2019 and January 31, 2020. 
The operation will take place approximately 300 yards southwest of 
Berth II in Ketchikan, AK. Hazards from explosive dredging include 
concussive forces. The COTP has determined that potential hazards 
associated with the explosives to be used in this operation would be a 
safety concern for anyone above the water's surface within a 500-yard 
radius of Pinnacle Rock (located at approximately latitude 
55[deg]20'37'' N, longitude 131[deg]38'96'' W).
    In response, on November 22, 2019, the Coast Guard published a 
notice of proposed rulemaking (NPRM) titled ``Temporary Safety Zone for 
Explosive Dredging, Tongass Narrows, Ketchikan, AK'' (84 FR 64445). 
There we stated why we issued the NPRM, and invited comments on our 
proposed regulatory action related to this safety zone. During the 
comment period that ended December 9, 2019, we received eight comments.
    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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed to 
protect the public from the potential safety hazards associated with 
the explosive dredging operation, which is scheduled to begin on 
December 16, 2019.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that 
potential hazards associated with the explosives to be used in this 
operation would be a safety concern for anyone above the water's 
surface within a 500-yard radius of Pinnacle Rock (located at 
approximately latitude 55[deg]20'37'' N, longitude 131[deg]38'96'' W). 
The purpose of this rulemaking is to ensure the safety of vessels and 
the navigable waters of the Tongass Narrows, from shoreline to 
shoreline, within a 500-yard radius of Pinnacle Rock before, during, 
and after the scheduled operation December 16, 2019 and January 31, 
2020.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received eight comments on our NPRM published on 
November 22, 2019. Five comments were supportive. Three comments raised 
concerns regarding the operation's affect on marine wildlife. We 
considered these comments and

[[Page 69329]]

believe the City of Ketchikan has a sufficient and comprehensive plan 
to protect marine wildlife from harm; the city will employ mitigation 
measures to include having three dedicated, full-time Protected Species 
Observers to monitor the area and will have designated shut down zones 
where operations will cease if Alaskan marine mammals are observed. 
There are no changes in the regulatory text of this rule from the 
proposed rule in the NPRM.
    This rule establishes a safety zone from 30 minutes after sunrise 
to one hour before sunset between December 16, 2019 and January 31, 
2020. The safety zone would cover all navigable waters within 500 yards 
of Pinnacle Rock during explosive dredging operations in the Tongass 
Narrows located approximately 300 yards southwest of Berth II in 
Ketchikan, AK. The duration of the zone is intended to ensure the 
safety of vessels and these navigable waters before, during, and after 
the daily 35-minute period of explosive dredging. No vessel or person 
would be permitted to enter the safety zone without obtaining 
permission from the COTP or a designated representative. The regulatory 
text appears at the end of this document.

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, this rule 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 size, 
location, duration, time-of-day and time-of-year of the safety zone. 
Vessel traffic would be able to safely transit around this safety zone, 
south of Pennock Island, which would impact a small designated area of 
the Tongass Narrows for less than one hour per day when Contract 
Drilling & Blasting LLC would decide to detonate the explosives. The 
Coast Guard will issue a 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 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 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 
call or email 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 call or email 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 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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 lasting less than an hour daily for 47 days that would 
prohibit entry within 500 yards of an explosive dredging operation in 
the Tongass Narrows. It is categorically excluded from further review 
under paragraph L60(a) of Appendix A, Table 1 of DHS

[[Page 69330]]

Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental 
Consideration supporting this determination is available in the docket. 
For instructions on locating the docket, see the ADDRESSES section of 
this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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: 46 U.S.C. 70034, 70051; 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.T17-0838 to read as follows:


Sec.  165.T17-0838   Safety Zone for Explosive Dredging Operations; 
Tongass Narrows, Ketchikan, AK.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Tongass Narrows, from shoreline to shoreline, within a 
500-yard radius of Pinnacle Rock (located at approximately latitude 
55[deg]20'37'' N, longitude 131[deg]38'96'' W) before, during, and 
after the scheduled operation between December 16, 2019 and January 31, 
2020.
    (b) Definitions. As used in this section:
    (1) Captain of the Port (COTP) means the Commander, U.S. Coast 
Guard Sector Juneau.
    (2) Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port Southeast Alaska to assist in enforcing the safety zone described 
in paragraph (a) of this section.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative. All vessels underway within this 
safety zone at the time it is activated are to depart the zone.
    (2) To seek permission to enter, contact the COTP or the COTP's 
designated representative by telephone at 907-463-2980 or on Marine 
Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels 
enforcing this section can be contacted on Marine Band Radio VHF-FM 
channel 16 (156.8 MHz).
    (3) Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted in 
the patrol and enforcement of the safety zone by Federal, State, and 
local agencies.
    (e) Enforcement. This safety zone may be enforced during the period 
described in paragraph (f) of this section. Contract Drilling & 
Blasting LLC will have two safety vessels on-scene near the location 
described in paragraph (a) of this section.
    (f) Enforcement period. This section may be enforced from 30 
minutes after sunrise to one hour before sunset between December 16, 
2019, and January 31, 2020, during explosive dredging operations by 
Contract Drilling & Blasting LLC.

    Dated: December 10, 2019.
Stephen R. White,
Captain, U.S. Coast Guard, Captain of the Port Southeast Alaska.
[FR Doc. 2019-27195 Filed 12-17-19; 8:45 am]
 BILLING CODE 9110-04-P