
[Federal Register Volume 77, Number 189 (Friday, September 28, 2012)]
[Rules and Regulations]
[Pages 59551-59554]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23855]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0767]
RIN 1625-AA00


Safety Zone, Changes to Original Rule; Boston Harbor's Rock 
Removal Project, Boston Inner Harbor, Boston, MA

AGENCY: Coast Guard, DHS.

[[Page 59552]]


ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing three temporary safety zones 
within Sector Boston's Captain of the Port (COTP) Zone for the 
drilling, blasting, and dredging operation on the navigable waters of 
Boston Inner Harbor, in the main ship channel near Castle Island. These 
temporary safety zones are necessary to enhance navigation, vessel 
safety, marine environmental protection, and provide for the safety of 
life on the navigable waters during the drilling, blasting and dredging 
operations in support of the U.S. Army Corps of Engineers rock removal 
project. Entering into, transiting through, mooring or anchoring within 
these safety zones is prohibited unless authorized by the COTP or the 
designated on-scene representative.

DATES: This rule is effective with actual notice from September 4, 
2012, until September 28, 2012. This rule is effective in the Code of 
Federal Regulations from September 28, 2012 until September 30, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0767. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' Box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with the rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation, West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary final rule, call or email Mr. Mark Cutter, Coast Guard Sector 
Boston Waterways Management Division, telephone 617-223-4000, email 
Mark.E.Cutter@uscg.mil. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port

A. Regulatory History and Information

    On August 23, 2012, the Coast Guard published a temporary final 
rule establishing a safety zone for rock removal operations in Boston 
Harbor, entitled ``Safety Zone; Boston Harbor's Rock Removal Project, 
Boston Inner Harbor, Boston, MA'' (77 FR 50916). This new rule retains 
the original provisions of that temporary final rule, but adds two 
additional safety zones necessary for the safety of life at sea.
    The Coast Guard is issuing this temporary final 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 notice of proposed rulemaking (NPRM) with 
respect to this rule. Publication of an NPRM would be impracticable 
because critical information regarding the scope of the event was not 
received from the U.S. Army Corps of Engineers until July 15, 2012, 
providing insufficient time for the Coast Guard to solicit public 
comments before the start date of the project. A delay or cancellation 
of the project in order to accommodate a notice and comment period 
would be contrary to the public interest because immediate action is 
necessary to ensure the safety of the personnel involved in the rock 
removal project and any public vessels in the vicinity of the drilling, 
dredging and blasting operations being conducted. For the safety 
concerns noted, it is in the public interest to have these regulations 
in effect during the rock removal project.
    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 stated above, any 
delay in the effective date of this rule would expose personnel 
involved in the rock removal project and any public vessels in the 
vicinity to any hazards associated with the drilling, dredging and 
blasting operations.

B. Basis and Purpose

    Starting from August 13, 2012, daily from 5 a.m. to 8 p.m. until 
September 30, 2012, the contractor Burnham Associates Inc. has been 
conducting drilling, blasting and dredging operations in support of the 
U.S. Army Corps of Engineers Boston Harbors main ship channel rock 
removal project.
    The U.S. Army Corps of Engineers discussed the rock removal project 
at the Boston's Port Operators Group monthly meeting on July 15, 2012. 
The Coast Guard hosted a meeting on August 2, 2012 inviting 
stakeholders from the maritime industry in Boston Harbor to discuss and 
mitigate any impacts this project will have on maritime community. The 
feedback from the meeting was that these safety zones will have minimum 
impact on local mariners based on the location and the fact that the 
majority of boating traffic will be able to transit around the safety 
zones and that the vessels involved in the rock removal operations will 
move as needed for deep draft vessels.
    The legal basis for the temporary rule is 33 U.S.C. 1226, 1231, 46 
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295, 
116 Stat. 2064; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define safety 
zones.

C. Discussion of Final Rule

    The COTP Boston has determined that hazards associated with the 
drilling, dredging and blasting operations pose a significant risk to 
safety of life on navigable waters. Three safety zones will be 
established to help ensure the safety of the personnel involved in the 
rock removal project and any public vessels in the vicinity, and help 
minimize associated risks with this project. For those reasons, safety 
zones are being issued to provide for the safety of life on the 
navigable waters during the drilling, blasting and dredging operations 
in support of the U.S. Army Corps of Engineers rock removal project.
    The first safety zone will be a 100-yard radius around the workboat 
``MANTIS'' while transiting to and from the work site with explosives 
onboard. The second safety zone will be a 100-yard radius centered on 
the various worksites while actively engaged in drilling, blasting and 
dredging operations are on-going. The final safety zone will be 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. 
These safety zones will be enforced only while the vessel is on scene 
conducting operations involved in the rock removal project in Boston 
Harbor's main ship near Castle Island.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

[[Page 59553]]

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) Executive Order 12866 or under 
section 1 of Executive Order 13563. The Office of Management and Budget 
has not reviewed it under that Order.
    The Coast Guard has determined that this rule is not a significant 
regulatory action for the following reasons: the Coast Guard expects 
minimal adverse impact to mariners from the activation of the zones; 
vessels have sufficient room to transit around the safety zones, with 
exception given to the final zone, which will stop traffic for short 
periods of time each day; the vessel conducting the operations will 
move out of the channel for deep draft vessels that need to pass 
through that area and vessels may enter or pass through the affected 
waterway with the permission of the Captain of the Port (COTP) or the 
COTP's designated on-scene representative; and notification of these 
safety zones will be made to mariners through the local Notice to 
Mariners, Broadcast Notice to Mariners, and by Safety Marine 
Information Broadcasts in advance of the event.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended requires federal agencies to consider the potential impact of 
regulations on small entitles during rulemaking. 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 
for the following reasons: Vessels have sufficient room to transit 
around the safety zone; the vessel conducting the operations will move 
out of the channel for deep draft vessels that need to pass through 
that area and vessels may enter or pass through the affected waterway 
with the permission of the Captain of the Port (COTP) or the COTP's 
designated on-scene representative; notification of the safety zone 
will be made to mariners through the Local Notice to Mariners, 
Broadcast Notice to Mariners, and by Safety Marine Information 
Broadcasts well in advance of the event.

3. Assistance for Small Entities

    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, 
above.
    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.

4. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on 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 determined 
that it does not have implications for federalism.

6. 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.

7. 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 expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

11. Indian Tribal Governments

    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.

12. Energy Effects

    This action is not a ``Significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 concluded 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human

[[Page 59554]]

environment. This rule involves the establishment of three safety 
zones. This rule is categorically excluded from further review under, 
paragraph 34(g) of figure 2-1 of the Commandant Instruction. An 
environmental analysis checklist 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.

List of Subjects in 33 CFR Part 165

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, 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; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Revise Sec.  165.T01-0767 to read as follows:


Sec.  165.T01-0767  Safety Zone; Boston Harbor's Rock Removal Project, 
Boston Inner Harbor, Boston, MA.

    (a) General. Three temporary safety zones are established for the 
Boston Harbor's Rock Removal Project as follows:
    (1) Location. (i) All navigable waters from surface to bottom, 
within a 100-yard radius around the vessel or vessels conducting 
drilling, blasting, dredging, and other related operations related to 
rock removal in Boston's Inner Harbor near Castle Island.
    (ii) All navigable waters from surface to bottom, with a 100-yard 
radius around the vessel ``MANTIS'' while transporting explosives to 
and from the work site.
    (iii) All navigable waters from surface to bottom, with a 500-yard 
radius around the blasting site while setting up for blasting, 
blasting, and in the immediate aftermath.
    (2) Definitions. For the purposes of this section, ``Designated on-
scene representative'' is any Coast Guard commissioned, warrant, or 
petty officer who has been designated by the Captain of the Port Boston 
(COTP) to act on the COTP's behalf. The designated representative may 
be on an Official Patrol Vessel. An ``Official Patrol Vessel'' may 
consist of any Coast Guard, Coast Guard Auxiliary, state, or local law 
enforcement vessels assigned or approved by the COTP or the designated 
on-scene representative 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.
    (3) Enforcement Period. This rule will be enforced daily from 5 
a.m. to 8 p.m. from September 4, 2012, until September 30, 2012.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.23, as well as the following regulations, apply.
    (2) No vessels, except for participating or public vessels, will be 
allowed to enter into, transit through, or anchor within these safety 
zones without the permission of the COTP or the designated on-scene 
representative.
    (3) All persons and vessels shall comply with the instructions of 
the COTP or the designated on-scene representative. Upon being hailed 
by a U.S. Coast Guard vessel by siren, radio, flashing light, or other 
means, the operator of a vessel shall proceed as directed.
    (4) Vessel operators desiring to enter or operate within the 
regulated area shall contact the COTP or the designated on-scene 
representative via VHF channel 16 or 617-223-3201 (Sector Boston 
command Center) to obtain permission.

    Dated: September 4, 2012.
J.C. O'Connor III,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2012-23855 Filed 9-27-12; 8:45 am]
BILLING CODE 9110-04-P


