E7-20780. Safety Zone: Army Corps of Engineers Blasting and Dredging Operation, Boston Harbor, Boston, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing temporary safety zones in Boston Harbor, Boston, Massachusetts, for the Army Corps of Engineers (ACOE) blasting and dredging operation, to include the underwater blasting locations and the vessel transporting blasting material to and from the work sites, between October 5, 2007 and December 31, 2007. The zone temporarily closes all navigable waters of Boston Harbor within a four hundred (400) yard radius of the four underwater demolition sites located at approximate positions 42°20′05.5″ N, 070°59′53.9″ W, east-southeast of Castle Island; 42°20′19.0″ N, 070°58′46.5″ W, President Roads Anchorage; 42°21′15.80″ N, 070°55′51.95″ W, North Channel; 42°22′03.70″ N, 070°55′18.83″ W, North Channel, while blasting operations are occurring and a moving safety zone of one hundred yards around the M/V EMILY ROSE. The operations will only occur during daylight hours. The safety zone is necessary to protect the maritime public from the potential hazards posed by the blasting and dredging. Entry into this zone is prohibited during the closure period unless authorized by the Captain of the Port Boston, Massachusetts.

DATES:

This rule is effective from 12:01 a.m. on October 5, 2007 until 11:59 p.m. on December 31, 2007.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD01-07-145 and are available for inspection or copying at Sector Boston, 427 Commercial Street, Boston, MA, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Chief Eldridge McFadden, Sector Boston, Waterways Management Division, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

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. A notice and comment period was not held for this rulemaking because the logistics with respect to the blasting and dredging were not determined with sufficient time to draft and publish an NPRM. Delaying the necessary blasting operations to accommodate a notice and comment period would be contrary to the public interest.

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 as immediate action is needed to protect vessels transiting the area from the hazards associated with underwater blasting and rock removal operations. Any delay encountered in this regulation's effective date would be contrary to the public interest since immediate 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 Army Corps of Engineers is conducting a project to deepen Boston Harbor. Within the shipping channels there are several rock formations which are impeding the progress of the work. The Army Corps has contracted RDA Construction to perform the associated blasting and dredging to remove the rock. The explosives will be transferred to and from the blasting sites aboard the M/V EMILY ROSE. In order to protect the maritime public from the hazards associated with the loading, detonation, and transportation of explosives in and around the blasting areas, the Coast Guard is establishing safety zones around each of the four blasting sites and a moving safety zone around the vessel EMILY ROSE as it transits from the loading point on the Fore River in Quincy, Massachusetts to the blasting sites and back. Entry into these zones will be prohibited unless authorized by the Captain of the Port.

Discussion of Rule

This rule establishes temporary safety zones on the navigable waters of Boston Harbor within a four hundred (400) yard radius of the various rock sites located in Boston Harbor at approximate positions 42°20′05.5″ N, 070°59′53.9″ W, east-southeast of Castle Island; 42°20′19.0″ N, 070°58′46.5″ W, President Roads Anchorage; 42°21′15.80″ N, 070°55′51.95″ W, North Channel; and, 42°22′03.70″ N, 070°55′18.83″ W, North Channel while blasting and dredging is occurring. This regulation also establishes a moving safety zone on all navigable waters of the Fore River and Boston Harbor in a 100 yard radius around the M/V EMILY ROSE as it loads and unloads explosives and transits from the Fore River to the four demolition areas and from the demolition areas back to the Fore River shipyard. The explosives loading will occur at the Fore River shipyard wet dock in Quincy, Massachusetts. The explosives will be transported via vessel to the construction barges at the above noted positions where the blasting and dredging is occurring.

This rule is effective from 12:01 a.m. EDT on October 5, 2007 until 11:59 p.m. EST on December 31, 2007. Although the safety zone will be in effect for twelve weeks, it will only be enforced during actual transit and blasting times. Blasting will only occur during daylight hours.

Marine traffic may transit safely outside of the zone during the enforcement period. Public notifications will be made prior to and during the enforcement period via safety marine information broadcasts and the event will be published in the Local Notice to Mariners. During the enforcement periods, entry into those zones by any vessel is prohibited unless specifically authorized by the Captain of the Port, Boston.

Given the limited time-frame of the enforcement period of the zone, the small safety zone size and the short duration of the blasting events, the Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Blasting operations are only to occur during daylight, specifically between the hours of 6 a.m. and 4 p.m. The moving safety zone around the EMILY ROSE will be enforced only during the loading, unloading and transit of explosives to the site and from the site back to shore with any unused explosives. Portions of the safety zones around the perimeter of the blasting work are located within the channel and may peripherally affect vessels transiting in or out of the port. However, the zone around the blasting worksite will be enforced only during the actual blasting times thus minimizing any adverse impact. Public notifications will be made during the entire effective period of this safety zone via marine information broadcasts and through local notice to mariners.

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. Although this rule will prevent traffic from transiting a portion of Boston Harbor during the blasting and dredging operations, the effect of this rule will not be significant for several reasons: vessels, although excluded from the zone, will have sufficient navigable water to safely maneuver in all other waters of Boston Harbor surrounding the zone when blasting is occurring; and, when blasting operations are not occurring the zones will not be enforced thus allowing vessels to move within the areas designated by this rule; also, advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners allowing mariners to plan voyages accordingly.

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 transit or anchor in a portion of Boston Harbor during the effective period of this safety zone. For the reasons outlined in the Regulatory Evaluation section above, this safety zone will not have a significant economic impact on a substantial number of small entities.

Assistance for Small Entities

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this 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 call Chief Eldridge McFadden, Sector Boston, Waterways Management Division, at [phone].

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 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 affect 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 and Department of Homeland Security Management Directive 5100.1, 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 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. Chapter 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.T01-145 to read as follows:

§ 165.T-01-145

Safety Zone: Army Corps Underwater Rock Demolition, Boston Harbor, Boston, MA.

(a) Location. The following areas are safety zones: (1) All navigable waters of the Fore River and Boston Harbor, from surface to bottom, within a four hundred (400) yard radius around the blasting and dredging sites located in Boston Harbor at approximate positions: 42°20′05.5″ N, 070°59′53.9″ W, east-southeast of Castle Island; 42°20′19.0″ N, 070°58′46.5″ W, President Roads Anchorage; 42°21′15.80″ N, 070°55′51.95″ W, North Channel; and 42°22′03.70″ N, 070°55′18.83″ W, North Channel, while blasting operations are occurring. (2) All navigable waters within a one hundred (100) yard radius of the motor vessel EMILY ROSE while it is loading, transporting and unloading explosives.

(b) Effective Date. This rule is effective from 12:01 a.m. on October 5, 2007 until 11:59 p.m. on December 31, 2007.

(c) Definitions. The following definition applies to this section: Designated representative, means any commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, state, and federal law enforcement vessels who have been authorized to act on the behalf of the Captain of the Port, Boston Harbor.

(d) Regulations. (1) The general regulations contained in 33 CFR § 165.23 apply.

(2) In accordance with the general regulations in section 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the Captain of the Port (COTP), Boston or the COTP's designated representative.

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

(4) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's designated representative to obtain permission by calling the Sector Boston Command Center at 617-223-5761 or 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 COTP or the COTP's designated representative.

(e) Enforcement period. This section will be enforced only during daylight hours where blasting operations are being conducted and when the vessel EMILY ROSE is loading, transporting or unloading explosives.

Dated: October 4, 2007.

Gail P. Kulisch,

Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.