2010-24157. Safety Zone; Ledge Removal Project, Bass Harbor, ME

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone around a ledge removal project in Bass Harbor, Maine. The United States Army Corps of Engineers (USACE) has contracted Prock Marine Company to remove a section of ledge in order to expand an anchorage area for the Town of Tremont. This regulation establishes a temporary safety zone around the work area where explosive charges will be used. This safety zone is necessary to protect waterway users from the hazards associated with explosive blasting and subsequent debris removal.

DATES:

This rule is effective beginning at 6 a.m. on October 1, 2010 through 11:59 p.m. on November 15, 2010.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0806 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0806 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 interim rule, call or e-mail Lieutenant Junior Grade Laura van der Pol, Waterways Management Division at Coast Guard Sector Northern New England, telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

The Coast Guard is issuing this 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 this project has already been subject to extensive public review and comment through the Army Corps of Engineers (USACE), Town of Tremont public meetings, and outreach by the Prock Marine Company. A complete description of the project was made available as a Public Notice at the New England District USACE Web site: http://www.nae.usace.army.mil/​projects/​me/​bassharbor/​bassharbor.htm. No objections have been raised by maritime interests or the local community. The Coast Guard finds that issuing a NPRM for this temporary rule unnecessary and contrary to public interest as immediate action is necessary to protect the public from the hazards associated with explosive blasting.

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 enumerated above. In addition, there is an immediate need to protect waterway users from hazards associated with the explosive charges. A delay in the effective dates of this regulation would delay the start of the ledge removal; such a delay would be contrary to public interest. The USACE has given Prock Marine Company a limited time period beginning on October 1, 2010 in which the ledge removal can take place. A delay in the start date could jeopardize the project as on site weather conditions deteriorate as the fall season progresses, and any delay to the project completion would be contrary to public interest.

Basis and Purpose

The USACE plans to remove 1,800 cubic yards of a ledge in the navigable waterway in and around Bass Harbor both to increase mooring capacity for fishing trawlers and recreational vessels and to provide a channel connecting the inner and outer harbor anchorages. This project will last approximately 30 days beginning October 1, 2010 and will involve using explosive charges to remove a section of ledge. As blasting projects introduce significant hazards to waterway users, including risk of injury or death from near or actual contact with the blasting and dredge equipment, a safety zone around the blast area is necessary to ensure the safety of waterway users in Bass Harbor. This rule prevents vessels from entering, transiting, mooring or anchoring within the area designated as a safety zone unless authorized by the Captain of the Port or his designated representative.

The USACE, Town of Tremont, and Prock Marine Company have conducted extensive public outreach regarding this proposed ledge removal project with no negative feedback. This temporary safety zone will facilitate this project by ensuring that the safety of waterway users is not compromised while blasting operations take place.

Discussion of Rule

This rule establishes a temporary safety zone located 500 feet east of the Tremont Town Pier. The safety zone covers an area approximately 900 feet by 600 feet including all navigable waters from surface to bottom extending 300 feet around the following coordinates: 44°14′27.9″ N, 068°21′01.8″ W to the northwest; 44°14′28.5″ N, 068°20′59.9″ W to the northeast; 44°14′25.6″ N, 068°20′59″ W to the southeast; and 44°14′25.3″ N, 068°21′00.1″ W to the southwest. The zone will be marked with four, red, inflatable markers indicating the edges of the zone.

During the enforcement period of the safety zone, persons and vessels are prohibited from entering, transiting, anchoring or mooring within the zone unless specifically authorized by the Captain of the Port (COTP) or his designated representative. The “designated representative” is any Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP to act on his behalf. On-scene patrol personnel may also assist with the enforcement of this regulation. Patrol personnel may be comprised of local, State, or Federal officials authorized to act in support of the Coast Guard. In addition, members of the Coast Guard Auxiliary or Prock Marine Company may be present to inform waterway users of this regulation.

The Coast Guard anticipates little negative impact on vessel traffic from this temporary safety zone as the ledge that is being removed already renders the area unsuitable for navigation by the majority of vessels transiting the area. In addition, the safety zone does not block vessel traffic to any other area of Bass Harbor, as the main channel lies to the west of the safety zone. Once the ledge has been removed and the Coast Guard has verified there are no remaining obstructions in the area, the enforcement of this safety zone may be suspended prior to the cancellation date. In order to facilitate public notice and vessel compliance with this regulation, details of the safety zone will be made via the Local Notice to Mariners and Safety Marine Information Broadcasts.

Regulatory Analyses

We developed this interim 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.

This rule is not a significant regulatory action because there is no commercial traffic in the region. Also, traffic will be allowed to pass through the zone with the permission of the Coast Guard Captain of the Port.

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 will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit, anchor or moor in the designated safety zone during the enforcement period stated in the List of Subjects.

The safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone will be of limited size and duration, and vessels that can safely do so may navigate in all portions of the waterway except for the area designated a safety zone. Additionally, before the effective period, the Coast Guard will issue notice of the time and location of the safety zone through the Local Notice to Mariners and Safety Marine Information Broadcast.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 as this rule involves establishing a safety zone.

An environmental analysis checklist and a categorical exclusion determination are 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, and 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. Chapters 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.T01-0806 to read as follows:

§ 165.T01-0806

Safety zone; Ledge Removal Project, Bass Harbor, Maine.

(a) Location. The following area is a designated safety zone:

All navigable waters from surface to bottom extending 300 feet around the following coordinates: 44°14′27.9″ N, 068°21′01.8″ W to the northwest; 44°14′28.5″ N, 068°20′59.9″ W to the northeast; 44°14′25.6″ N, 068°20′59″ W to the southeast; and 44°14′25.3″ N, 068°21′00.1″ W to the southwest. The zone will be marked with four, red, inflatable markers indicating the edges of the zone.

(b) Notification. Coast Guard Sector Northern New England will cause notice of the enforcement of this temporary safety zone to be made by all appropriate means to affect the widest publicity among the effected segments of the public, including publication in the Local Notice to Mariners and Safety Marine Information Broadcast.

(c) Effective Period. This rule is effective from 6 a.m. on October 1, 2010 through 11:59 p.m. on November 15, 2010.

(d) Regulations. (1) The general regulations contained in 33 CFR 165.23 apply. During the enforcement period, entering, transiting, anchoring or mooring within the safety zone is prohibited unless authorized by the COTP or his designated representatives.

(2) This temporary safety zone is closed to all vessel traffic, except as may be permitted by the COTP or his designated representatives. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or his designated representative. Vessels that are granted permission to enter or remain within the safety zone may be required to be at anchor or moored to a waterfront facility such that the vessel's location will not interfere with dredging operations.

(3) The “designated representative” is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on his behalf. The on-scene representative may be on a Coast Guard vessel, a State or local law enforcement vessel, or other designated craft, or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. On-scene patrol personnel may also assist with the enforcement of this regulation. Patrol personnel may be comprised of local, State, or Federal officials authorized to act in support of the Coast Guard. In addition, members of the Coast Guard Auxiliary or Prock Marine Company may be present to inform waterway users of this regulation.

(4) Vessel operators desiring to enter or operate within the safety zone shall request permission to do so by contacting the COTP Sector Northern New England by telephone at 207-767-0303 or on VHF radio channel 16.

Dated: September 2, 2010.

J.B. McPherson,

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