Daily Rules, Proposed Rules, and Notices of the Federal Government
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 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. The U.S. Army Corps of Engineers also 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 this safety zone 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 zone and that the vessels involved in the rock removal operations will move as needed for deep draft vessels. 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
The legal basis for the temporary rule is 33 U.S.C. 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, 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.
The safety zone is 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.
Starting August 13, 2012, daily from 5 a.m. to 8 p.m. until September 30, 2012, the contractor Burnham Associates Inc. will be 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 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. Establishing a safety zone around the vessel conducting the drilling, blasting, and dredging will help ensure the safety of the personnel involved in the rock removal project and any public vessels in the vicinity, and help minimize the associated risks with this project. This safety zone will establish a 100-yard radius around the vessel conducting the drilling, blasting and dredging operations in various locations in Boston Harbor's main ship channel near Castle Island. To ensure public safety, the safety zone 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.
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.
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 zone; 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; and notification of the safety zone will be made to mariners through the local Notice to Mariners, Broadcast Notice to Mariners in advance of the event.
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 well in advance of the event.
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 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
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.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
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.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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.
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.
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.
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.
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.
This action is not a “Significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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 environment. This rule involves the establishment of a safety zone. 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
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:
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.
(2) No vessels, except for participating or public vessels, will be allowed to enter into, transit through, or anchor within the safety zone without the
(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.
Captain of the Port Boston.