2010-10316. Safety Zones; Blasting Operations and Movement of Explosives, St. Marys River, Sault Sainte Marie, MI

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing four temporary safety zones in the vicinity of the downstream approach to the Sault Sainte Marie, Michigan locks. All vessels are prohibited from transiting the zones to ensure the safety of the maritime community during blasting and dredging operations.

DATES:

Effective Date: This rule is effective in the CFR from May 4, 2010 until 10 p.m. August 31, 2010. This rule is effective with actual notice for purposes of enforcement beginning 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0290 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0290 in the “Keyword” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 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 rule, call or e-mail BMC Gregory Ford, Facility Inspection Division, U.S. Coast Guard Sector Sault Sainte Marie; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

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 because the publishing of an NPRM would be contrary to public interest, since immediate action is needed to ensure the public's safety during blasting and dredging operations. Delaying the implementation of the safety zone would subject the public to the hazards associated with blasting and dredging operations and the movement of explosives for those operations. The danger posed by the volume of marine traffic on the Saint Marys River makes safety zone regulations necessary. For the safety concerns noted, it is in the public interest to have these regulations in effect immediately and without waiting for a comment period to run. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. The regular presence of Coast Guard and local law enforcement vessels will also provide actual notice to mariners.

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 because to do otherwise, would be contrary to the interest of the public by jeopardizing public safety during blasting and dredging operations. Immediate action is necessary to prevent possible loss of life and property.

Basis and Purpose

As part of the Sault Sainte Marie replacement lock downstream approach channel deepening project, the Army Corps of Engineers must blast and dredge portions of the Saint Marys River downstream of the Sabin and Davis Locks. Due to the inherent dangers associated with blasting and dredging operations, a temporary safety zone is necessary to help ensure the safety of the maritime public operating near the work site. The worst case potential explosive arc for the work site of this project has been calculated to be approximately 975 feet. The blasting and dredging operations also require the movement of explosives via barge from Sault Sainte Marie, Michigan to the work site. Due to the inherent dangers associated with the movement of explosives, a safety zone is necessary to help ensure the safety of the maritime public operating near the barge when explosives are being loaded and while the barge is in transit with explosives onboard. The worst case potential explosive arc for safety zone has been calculated to be approximately 500 feet. The project is also required to comply with applicable state laws and local ordinances.

Discussion of Rule

The Coast Guard is establishing four temporary safety zones. The first temporary safety zone is a fixed zone on the western portion of the area where the blasting and dredging operations will be taking place. This temporary safety zone applies to the navigable waters downstream of the Sabin and Davis Locks, Sault Sainte Marie, Michigan, with east and west boundaries starting approximately 250 feet due east of the center of the Sabin Lock downstream gate, to approximately 1,750 feet due east of the center of the Davis Lock downstream gate. The zone is further bound by the southern pier face of the Northeast Pier, and the northern pier face of the East Center Pier. It also applies to a portion of the Army Corps of Engineers hydroelectric power plant effluence, and waters surrounding the eastern tip of the Northeast Pier. This portion of the zone extends west approximately 1,100 feet from the tip of the Northeast Pier, and out to the north, approximately 150 feet. The zone is bound by the following coordinates: 46°30′22.50″ N/084°20′40.81″ W; 46°30′22.50″ N/084°20′29.35″ W; 46°30′20.16″ N/084°20′25.29″ W; 46°30′18.81″ N/084°20′25.29″ W; 46°30′18.66″ N/084°20′28.36″ W; 46°30′12.90″ N/084°20′28.36″ W; 46°30′13.18″ N/084°20′39.17″ W; 46°30′15.27″ N/084°20′48.17″ W; 46°30′15.45″ N/084°20′51.00″ W; 46°30′16.41″ N/084°20′51.00″ W; 46°30′16.98″ N/084°20′40.81″ W; (NAD 83). This zone will be enforced continually from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010.

The second temporary safety zone is a fixed zone and applies to the navigable waters within a radius of 1,100 feet centered on the test blast location approximately 600 feet due east of the pier between the Sabin and Davis locks, Sault Sainte Marie, Michigan at 46°30′15.46″ N/084°20′39.12″ W; (NAD 83). This zone will be effective from 5 a.m. April 23, 2010 through 10 p.m. May 9, 2010. The public will be notified of enforcement of this zone by Broadcast Notice to Mariners in accordance with the procedures outlined in this regulation.

The third temporary safety zone is a moving zone and applies to the navigable waters within a radius of 500 feet from the barge “M2” at any time the barge is involved in explosives loading operations or while transiting with explosives on board. This zone will be effective from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010. The public will be notified of enforcement of this zone by Broadcast Notice to Mariners in accordance with the procedures outlined in this regulation.

The fourth temporary safety zone is a fixed zone on the eastern portion of the area where the blasting and dredging operations will be taking place. This temporary safety zone applies to the navigable waters downstream of the Sabin and Davis Locks, Sault Sainte Marie, Michigan, with east and west boundaries starting approximately 1,750 feet due east of the center of the Davis Lock downstream gate, to approximately 2,850 feet due east of the center of the Davis Lock downstream gate. The zone is bound to the south by the northern pier face of the East Center Pier. The northern boundary of the zone is approximately 600 feet north of the East Center Pier. The area is bound by the following coordinates: 46°30′18.66″ N/84°20′28.36″ W; 46°30′19.36″ N/84°20′14.23″ W; 46°30′19.20″ N/84°20′13.87″ W; 46°30′11.59″ N/84°20′12.96″ W; 46°30′11.78″ N/84°20′19.53″ W; 46°30′12.69″ N/84°20′19.68″ W; 46°30′12.90″ N/84°20′28.36″ W; (NAD 83). This zone will be effective from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010. The public will be notified of enforcement of this zone by Broadcast Notice to Mariners in accordance with the procedures outlined in this regulation.

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.

Regulatory Planning and Review

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.

Although this regulation will restrict access to the areas, the effect of the rule will not be significant because maritime traffic will be minimally impacted. The water area near the primary work, which is protected by the first temporary safety zone, is blocked on three sides and receives very little vessel traffic. The remaining zones will be enforced as required by blasting and dredging operations, which will typically be only during times of reduced vessel traffic.

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.

The following entities may be affected by this rule, some of which may be small entities: The owners or operators of vessels intending to operate, transit, or anchor in portions of the Saint Marys River from April 23, 2010 through August 31, 2010. The safety zones will not have a significant impact on a substantial number of small entities for the following reasons: Access to most of the primary work zone, which is protected by the first temporary safety zone, is blocked on three sides and receives very little vessel traffic. The remaining zones will be enforced as required by blasting and dredging operations, which will typically be only during times of reduced vessel traffic. Plus, the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Overall, the Coast Guard expects the economic impact of this rule to be minimal traffic.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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.

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 (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.

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.

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 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 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 is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves regulations establishing safety zones to protect the public from the dangers associated with blasting and dredging operations. An environmental analysis checklist and a 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. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 § 165.T09-0290 to read as follows:

§ 165.T09-0290

Safety Zones; Blasting Operations and Movement of Explosives, St. Marys River, Sault Sainte Marie, MI.

(a) Location. The following areas are safety zones:

(1) All U.S. navigable waters downstream of the Sabin and Davis Locks, Sault Sainte Marie, Michigan, with east and west boundaries starting approximately 250 feet due east of the center of the Sabin Lock downstream gate, to approximately 1,750 feet due east of the center of the Davis Lock downstream gate. The zone is further bound by the southern pier face of the Northeast Pier, and the northern pier face of the East Center Pier. This zone also includes a portion of the Army Corps of Engineers hydroelectric power plant effluence, and waters surrounding the eastern tip of the Northeast Pier. This portion of the zone extends west approximately 1,100 feet from the tip of the Northeast Pier, and out to the north, approximately 150 feet. The zone is bound by the following coordinates: 46°30′22.50″ N/084°20′40.81″ W; 46°30′22.50″ N/084°20′29.35″ W; 46°30′20.16″ N/084°20′25.29″ W; 46°30′18.81″ N/084°20′25.29″ W; 46°30″18.66″ N/084°20′28.36″ W; 46°30′12.90″ N/084°20′28.36″ W; 46°30′13.18″ N/084°20′39.17″ W; 46°30′15.27″ N/084°20′48.17″ W; 46°30′15.45″ N/084°20′51.00″ W; 46°30′16.41″ N/084°20′51.00″ W; 46°30′16.98″ N/084°20′40.81″ W; (NAD 83).

(2) All U.S. navigable waters within a radius of 1,100 feet centered on the test blast location approximately 600 feet due east of the pier between the Sabin and Davis locks, Sault Sainte Marie, Michigan at 46°30′15.46″ N/084°20′39.12″ W; (NAD 83).

(3) All U.S. navigable waters within a radius of 500 feet from the barge “M2” at any time the barge is involved in explosives loading operations or while transiting with explosives on board.

(4) All U.S. navigable waters downstream of the Sabin and Davis Locks, Sault Sainte Marie, Michigan, with east and west boundaries starting approximately 1,750 feet due east of the center of the Davis Lock downstream gate, to approximately 2,850 feet due east of the center of the Davis Lock downstream gate. The zone is bound to the south by the northern pier face of the East Center Pier. The northern boundary of the zone is approximately 600 feet north of the East Center Pier. The area is bound by the following coordinates: 46°30′18.66″ N/84°20′28.36″ W; 46°30′19.36″ N/84°20′14.23” W;

46°30′19.20″ N/84°20′13.87″ W; 46°30′11.59″ N/84°20′12.96″ W;

46°30′11.78″ N/84°20′19.53″ W; 46°30′12.69″ N/84°20′19.68″ W;

46°30′12.90″ N/84°20′28.36″ W; (NAD 83).

(b) Effective period. This regulation is effective from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010. The safety zones established in paragraph (a) of this section will be enforced as follows:

(1) The zone described in paragraph (a)(1) of this section will be enforced continually from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010.

(2) The zone described paragraph (a)(2) of this section will be intermittently enforced from 5 a.m. April 23, 2010 through 10 p.m. May 14, 2010.

(3) The zone described in paragraph (a)(3) of this section is subject to enforcement from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010, any time the barge “M2” is transiting with explosives on board or involved in explosives loading operations.

(4) The zone described paragraph (a)(4) of this section will be intermittently enforced from 5 a.m. April 23, 2010 through 10 p.m. August 31, 2010.

(5) The Captain of the Port, Sector Sault Sainte Marie may suspend at any time the enforcement of any safety zone established under this section.

(6) The Captain of the Port, Sector Sault Sainte Marie, will notify the public of the enforcement and suspension of enforcement of a safety zone established by this section via any means that will provide as much notice as possible to the public. These means might include some or all of those listed in 33 CFR 165.7(a). The primary method of notification, however, will be through Broadcast Notice to Mariners and local Notice to Mariners.

(c) Regulations. (1) In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within an enforced safety zone established by this section is prohibited unless authorized by the Captain of the Port, Sector Sault Sainte Marie, or his on-scene representative.

(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Sault Sainte Marie, or his on-scene representative.

(3) The “on-scene representative” of the Captain of the Port, Sector Sault Sainte Marie, is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Sector Sault Sainte Marie, to act on his behalf. The on-scene representative of the Captain of the Port, Sector Sault Sainte Marie, will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.

(4) Vessel operators desiring to enter or operate within an enforced safety zone shall contact the Captain of the Port, Sector Sault Sainte Marie, or his on-scene representative to obtain permission to do so. The Captain of the Port, Sector Sault Sainte Marie, or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Sault Sainte Marie, or his on-scene representative.

Dated: April 20, 2010.

M.J. Huebschman,

Captain, U.S. Coast Guard, Captain of the Port, Sector Sault Sainte Marie.