[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Rules and Regulations]
[Pages 45571-45573]
[FR Doc No: 2018-19518]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0575]
RIN 1625-AA00

Safety Zone; Boston Harbor's Improvement Dredging Project,
Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing two temporary safety zones on
the navigable waters of Boston Harbor. The first safety zone will be
around any vessel, barge, or dredging equipment actively engaged in
dredging operations, drilling, or blasting. The second safety zone will
be around any blasting worksites. These safety zones are needed to
protect personnel, vessels, and the marine environment from the
potential hazards created by the dredging, drilling, and blasting
operations in support of the U.S. Army Corps of Engineers Boston
Harbor's Improvement Dredging Project. When enforced, this regulation
prohibits persons and vessels from being in the safety zone unless
authorized by the Captain of the Port Boston or a designated
representative.

DATES: This rule is effective from September 10, 2018 through August
31, 2023.
    Comments and related material must be received by the Coast Guard
during the effective period on or before December 10, 2018.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0575 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule. You may submit
comments identified by docket number USCG-2018-0575 using the Federal
eRulemaking Portal at http://www.regulations.gov. See the ``Public
Participation and Request for Comments'' portion for further
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mark Cutter, Waterways Management Division, U.S. Coast
Guard Sector Boston, telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
TIR Temporary Interim Rule
NPRM Notice of Proposed Rule Making
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On June 1, 2018, U.S. Army Corps of Engineers issued a notice
allowing the Joint Venture of Cashman Dredging Inc. and Dutra Group to
proceed with the improvement-dredging project of Broad Sound North
Channel, Boston's Inner Harbor Main Ship Channel, Conley Terminal
including the turning basin or ``MSC Notch,'' and President Roads
Anchorage. The project consists of deepening Broad Sound North Channel
to 51 feet below the surface, and Boston's Inner Harbor Main Ship
Channel, Conley Terminal including the turning basin or ``MSC Notch,''
and President Roads Anchorage each to 47 feet below the surface.
    The project includes dredging approximately 11.7 million cubic
yards of silt, blue clay, till and weathered rock from the Broad South
North Channel, Boston's Inner Harbor Main Ship Channel, Conley
Terminal, and President Roads Anchorage. Most of the material dredged
will be placed at the Massachusetts Bay Disposal Site (MBDS)
approximately 20 miles offshore of Boston Harbor. A small fraction of
the material dredged will be placed as a cap to the Main Ship Channel
Confined Aquatic Disposal Cell, just downstream of the inner confluence
of the Chelsea and Mystic Rivers. The initial phase of the dredge
operation involves using mechanical dredges and does not involve any
type of blasting or drilling operation. At some point, once the silt,
blue clay, till and weathered rock have been removed, blasting or
drilling may be needed to remove the hard rock. Whether blasting or
drilling will be required, it will not be known until the top material
has been removed and the contractor can locate the hard rock spots. The
dredge operation has begun and will continue for 24 hours a day, seven
days a week for approximately four years. The Coast Guard is publishing
this rule to be effective, and enforceable, through August 31, 2023, in
case the project is delayed due to unforeseen circumstances. If the
project is completed prior to August 31, 2023, enforcement of the
safety zones will be suspended and notice given via Broadcast Notice to
Mariners, Local Notice to Mariners, or both.
    The Coast Guard is issuing this temporary interim 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 NPRM with
respect to this rule because doing so would be impracticable and
contrary to the public interest. The notice allowing the dredging
project to proceed and providing dates for the project was only
recently finalized and provided to the Coast Guard, and timely action
is needed to respond to the potential safety hazards associated with
this dredging project. The late finalization of project details did not
give the Coast Guard enough time to publish a NPRM, take public
comments, and issue a final rule before dredging operations begin. It
would be impracticable and contrary to the public interest to publish a
NPRM because a safety zone must be established as soon as possible to
protect the safety of the waterway users, construction crew, and other
personnel associated with the dredging project. A delay of the dredging
project to accommodate a full notice and comment period would delay
necessary operations, result in increased costs, and delay the date
when the dredging project is expected to be completed and reopen Boston
Harbor for normal operations.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making it effective less than 30 days after publication in
the Federal Register. For reasons stated in the preceding paragraph,
delaying the effective date of this rule would be impracticable and
contrary to the public interest because timely action is needed to
respond to the potential safety

hazards associated with the dredging project.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231.
    The COTP Boston has determined that potential hazards exist
associated with a dredging project that has already commenced, and will
continue through August 31, 2023. This rule is needed to protect
personnel, vessels, and the marine environment on the navigable waters
of Broad Sound North Channel, Boston's Inner Harbor Main Ship Channel,
Conley Terminal including the turning basin or ``MSC Notch,'' and
President Roads Anchorage during the dredging project.

IV. Discussion of Comments, Changes, and the Rule

    This rule establishes two safety zones that will continue through
August 31, 2023.
    The first safety zone will have a 100-yard radius centered on any
vessel, barge, or dredging equipment while actively engaged in dredging
operations, drilling, or blasting. If blasting is needed for hard rock,
the second safety zone will have a 500-yard radius centered on the
worksite on each day of blasting, to be established once explosives are
laid and ready for detonation, and subsequently suspended once a
successful detonation has been confirmed. The Coast Guard will notify
the public and local mariners of this 500-yard safety zone through
appropriate means, which may include, but are not limited to,
publication in the Local Notice to Mariners and Broadcast Notice to
Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders and we discuss
First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, it has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive order 13771.
    This regulatory action determination is based on the following
reasons: (1) These safety zones will only impact a small designated
area of the waterway at any given time; (2) vessels wishing to transit
the waterway will have sufficient room to transit around the the safety
zones; (3) dredging vessel(s) conducting operations will move out of
the channel for deep draft vessels that need to pass through that area
and deep draft vessel traffic will be well coordinated though daily
communications with U.S. Army Corps of Engineers, Contractor, Ship
Pilots, and the U.S. Coast Guard; (4) local lobstermen can still set
pots in some areas of Boston harbor; (5) the 500-yd safety zone around
blasting operations will only be enforced when blasting is in progress
for short durations and with substantial public notice days in advance
of enforcement through a Broadcast Notice to Mariners (BNM) via marine
channel 16 (VHF-FM) of the exact location. The Coast Guard will place a
notice in the Local Notice to Mariner (LNM); issue Broadcast Notice to
Mariners (BNM) via marine channel 16 (VHF-FM), Safety Marine
Information Port Bulletin, discuss updates at the monthly Boston Port
Operators Group (POG) meeting, and at the Massachusetts Bay Harbor
Safety Committee meetings.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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
would not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant impact on any vessel
owner or operator.
    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 rule 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 FOR FURTHER INFORMATION CONTACT
section.
    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.

C. Collection of Information

    This temporary interim rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the 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 have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.

E. 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 would not result in such an expenditure, we do
discuss the effects of this rule elsewhere in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, which guides the Coast Guard in complying with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and
have made a preliminary determination 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 two safety zones on the navigable waters of Broad
Sound North Channel, Boston's Inner Harbor Main Ship Channel, Conley
Terminal including the turning basin or ``MSC Notch,'' and President
Roads Anchorage: (1) A 100-yard radius centered on any vessel, barge,
or dredging equipment while actively engaged in dredging operations,
drilling, or blasting. (2) If blasting is needed for hard rock, the
second safety zone will have a 500-yard radius centered on the worksite
on each day of blasting, to be established once explosives are laid and
ready for detonation, and subsequently suspended once a successful
detonation has been confirmed. Normally such actions are categorically
excluded from further review under paragraph L60(a) of Appendix A,
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary
Record of Environmental Consideration for Categorically Excluded
Actions is available in the docket where indicated under ADDRESSES. We
seek any comments or information that may lead to the discovery of a
significant environmental impact from this temporary interim rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
    We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
    We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this TIR as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.

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

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T01-0575 to read as follows:

Sec.  165.T01-0575   Safety Zone; Boston Harbor's Improvement Dredging
Project, Boston, MA.

    (a) Location. The following areas are safety zones: All navigable
waters from surface to bottom, within a 100-yard radius centered on any
vessel, barge or dredging equipment while actively engaged in dredging
operations, drilling, or blasting. All navigable waters from surface to
bottom, within a 500-yard radius centered on the blasting worksite
while setting up for blasting, during blasting, and in the immediate
aftermath.
    (b) Definitions. As used in this section:
    (1) Designated representative means any Coast Guard commissioned,
warrant, petty officer, or any federal, state, or local law enforcement
officer who has been designated by the Captain of the Port (COTP)
Boston, to act on his or her behalf. The designated representative may
be on an official patrol vessel or may be on shore and will communicate
with vessels via VHF-FM radio or loudhailer. In addition, members of
the Coast Guard Auxiliary may be present to inform vessel operators of
this regulation.
    (2) Official patrol vessels means any Coast Guard, Coast Guard
Auxiliary, state, or local law enforcement vessels assigned or approved
by the COTP Boston to enforce this section.
    (c) Enforcement periods. This section is enforceable 24 hours a day
through August 31, 2023. When enforced as deemed necessary by the COTP
Boston, vessels will be prohibited from entering this safety zone
unless granted permission from the COTP Boston or the COTP's designated
representative.
    (d) Regulations. When this safety zone is enforced, the following
regulations, along with those contained in 33 CFR 165.23 apply:
    (1) No person or vessel may enter or remain in this safety zone
without the permission of the COTP Boston or the COTP's designated
representatives. However, any person or vessel permitted to enter the
safety zone must comply with the directions and orders of the COTP
Boston or the COTP's designated representatives.
    (2) To obtain permission required by this regulation, individuals
may reach the COTP Boston or a COTP designated representative via
Channel 16 (VHF-FM) or<PHONE_NUMBER> (Sector Boston Command Center).
    (3) Upon being hailed by a U.S. Coast Guard vessel by radio, siren,
flashing lights, or other means, the operator of a vessel must proceed
as directed.
    (e) Penalties. Those who violate this section are subject to the
penalties set forth in 33 U.S.C. 1232.

    Dated: September 5, 2018.
Eric. J. Doucette,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2018-19518 Filed 9-7-18; 8:45 am]
 BILLING CODE 9110-04-P