E7-7187. Safety Zone; South Portland, ME, Gulf Blasting Project

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is reinstating the temporary safety zone around the blasting and dredging project near the Gulf Oil Terminal Berth in South Portland, Maine and around the M/V RELIANCE. These safety zones are needed to protect persons, facilities, vessels and others in the maritime community from the safety hazards associated with this blasting and dredging project, which is being undertaken to increase the water depth of the Gulf Oil Terminal Berth to 41 feet. Entry into this safety zone is prohibited unless authorized by the Captain of the Port, Northern New England.

DATES:

This rule is effective from 8 a.m. Eastern Daylight Time (EDT) April 2, 2007 until 11:59 p.m. Eastern Daylight Time (EDT) on April 15, 2007.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD01-07-012 and are available for inspection or copying at U.S. Coast Guard Sector Northern New England, 259 High Street, South Portland, ME 04106 between the hours of 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

LTJG Jarrett Bleacher, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On February 20, 2007, we enacted a Temporary Final Rule (TFR) entitled “Safety Zone; South Portland, Maine, Gulf Blasting Project”. (72 FR 10360, March 8, 2007) The original effective period for this rule was from 7 a.m. Eastern Standard Time (EST) on February 20, 2007 until 4 p.m. Eastern Daylight Time (EDT) on March 31, 2007. In order to maintain the protection of persons, facilities, vessels and others in the maritime community from the safety hazards associated with this blasting and dredging project, as the blasting contractor has informed the Coast Guard that operations will not be completed within the scheduled timeframe, we find it necessary to reissue a temporary regulation establishing a safety zone around the South Portland Maine, Gulf blasting project.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because any delay encountered with this regulation would be contrary to public safety since the safety zone is needed to provide for the safety of life on navigable waters and to prevent traffic from transiting within the waters effected by this blasting and dredging project. The details of this project's continuation were not provided to the Coast Guard until March 22, 2007 making it impossible to publish a NPRM or a final rule 30 days in advance.

Similarly, 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 this rule would be contrary to the public interest since continued action is necessary to protect persons, facilities, vessels and others in the maritime community from the safety hazards associated with the handling, detonation, and transportation of explosives.

Background and Purpose

The explosives loading and blasting operations will continue to occur at various times during the period between March 31, 2007 and April 15, 2007. The blasting plan calls for the drilling, blasting, and dredging of various areas within the berthing area of the Gulf Oil Terminal in South Portland, Maine. The explosives loading will occur at East End Beach at the Eastern Promenade, Portland, Maine, or at the municipal boat ramp at Bug Light Park, South Portland, Maine. The explosives will be transported via truck aboard M/V RELIANCE to the Gulf Oil Terminal in South Portland where the blasting and dredging project will be conducted. This regulation establishes a moving safety zone in all waters of the Fore River and Casco Bay in a 100-yard radius around the M/V RELIANCE as it transits from the East End Beach or Bug Light Park to the Gulf Facility and from the Gulf Facility back to the East End Beach or Bug Light Park. It also establishes a 100-yard safety zone around the perimeter of the affected portion of the berthing area of the Gulf Oil Terminal while blasting operations are being conducted. This area is defined as all of the waters enclosed by a line starting from a point located at the western side of the Gulf Oil Terminal Dock at latitude 43°39′12.537″ N, longitude 70°14′25.923″ W; thence to latitude 43°39′10.082″ N, longitude 70°14′26.287″ W; thence to latitude 43°39′10.209″ N, longitude 70°14′27.910″ W; thence to latitude 43°39′12.664″ N, longitude 70°14′27.546″ W; thence to the point of beginning.(DATUM:NAD 83). These safety zones are required to protect the maritime community from the hazards associated with the loading, detonation, and transportation of explosives. Entry into this zone will be prohibited unless authorized by the Captain of the Port.

Discussion of Rule

This rule continues to provide for the safety of vessel traffic and the maritime public from the hazards associated with blasting operations on the designated waters in the Fore River. This TFR reinstates a temporary safety zone around the blasting and dredging project near the Gulf Oil Terminal Berth in South Portland.

This document restricts vessel traffic in various portions of the Fore River and Casco Bay while the M/V RELIANCE is in transit and around the perimeter of the affected portion of the Gulf Oil Terminal when blasting operations are taking place. Although the safety zone being reinstated will be in effect for two weeks, as before, it will only be enforced during actual transit and blasting times. Entry into those zones by any vessel is prohibited unless specifically authorized by the Captain of the Port, Northern New England.

The Captain of the Port anticipates negligible negative impact on vessel traffic from this temporary safety zone as it will be in effect only during transit and blasting operations. Blasting operations are anticipated to occur only two to three times per week between the hours of 7 a.m. and 4 p.m. The moving safety zone around the M/V RELIANCE will be enforced only during the transit of explosives to the site and from the site back to shore with unused explosives. The zone around the perimeter of the work site extends only minimally into the channel and will not affect vessels transiting in or out of the port. The zone around the worksite will be enforced only during the actual blasting times. The enhanced safety to life and property provided by this rule greatly outweighs any potential negative impacts. Public notifications will be made during the entire effective period of this safety zone via marine information broadcasts.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: The safety zone will be enforced only during the transit of the M/V RELIANCE and during blasting operations. There is adequate room in the channel for vessels to transit during the blasting operations. Vessels will be permitted to transit and navigate in the effected waters when no blasting is taking place, minimizing any adverse impact. Additionally, extensive maritime advisories will be broadcast during the duration of the effective period.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the safety zone during this demolition event. However, this rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area, the ample space available for vessels to maneuver and navigate around the zone, and advance notifications will be made to the local community by marine information broadcasts.

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 proposed rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Jarrett Bleacher at [phone], Sector Northern New England, Waterways Management Division.

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 police or action of the Coast Guard.

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).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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 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.

Taking of Private Property

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

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.

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.

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.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

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

Environment

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

This rule fits the category selected from paragraph (34)(g), as it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 701; 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.

2. Add temporary § 165.T01-012 to read as follows:

§ 165.T01-012

Safety Zone: Gulf Oil Terminal Dredging Project, South Portland, ME.

(a) Location. The following area is a safety zone: All waters of the Fore River and Casco Bay in a 100 yard radius around the M/V RELIANCE as it transits from the East End Beach or Bug Light Park to the Gulf Oil Terminal Facility and from the Gulf Oil Terminal Facility back to the East End Beach or Bug Light Park, while transporting explosives; and, all waters in a 100 yard radius around the perimeter of the berthing area of the Gulf Oil Terminal while blasting operations are being conducted. This area is defined as: All of the waters enclosed by a line starting from a point located at the western side of the Gulf Oil Terminal Dock at longitude 43°39′12.537″ N, longitude 70°14′25.923″ W; thence to latitude 43°39′10.082″ N, longitude 70°14′26.287″ W; thence to latitude 43°39′10.209″ N, longitude 70°14′27.910″ W; thence to latitude 43°39′12.664″ N, longitude 70°14′27.546″ W; thence to the point of beginning.(DATUM:NAD 83). All vessels are restricted from entering this area.

(b) Effective Date. This section is effective 8 a.m. April 2, 2007 until 11:59 p.m. on April 15, 2007.

(c) Definitions. (1) Designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).

(2) [Reserved]

(d) Regulations. (1) In accordance with the general regulations in 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the COTP, Northern New England or the COTP's designated representative.

(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.

(3) Vessel operators desiring to enter or operate within the safety zone may contact the COTP or the COTP's designated representative at telephone number 207-767-0303 or on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz) to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions given to them by the COTP or the COTP's designated representative.

Dated: April 2, 2007.

S.P. Garrity,

Captain, U.S. Coast Guard, Captain of the Port, Northern New England.