[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Rules and Regulations]
[Pages 69328-69330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27195]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0838]
RIN 1625-AA00
Temporary Safety Zone for Explosive Dredging; Tongass Narrows,
Ketchikan, AK
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone for
certain waters of the Tongass Narrows. This action is necessary to
provide for the safety of life on all navigable waters of the Tongass
Narrows, from shoreline to shoreline, within a 500-yard radius of the
Pinnacle Rock before, during, and after the scheduled operation between
December 16, 2019 and January 31, 2020. This temporary final rule
prohibits persons and vessels from being in the safety zone unless
authorized by the Captain of the Port Southeast Alaska or a designated
representative.
DATES: This rule is effective without actual notice from December 18,
2019 through January 31, 2020. For the purposes of enforcement, actual
notice will be used from December 16, 2019 through December 18, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0838 in the ``SEARCH'' box, and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LT Jesse Collins, Sector Juneau Waterways Management
Division, U.S. Coast Guard; telephone 907-463-2846, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Southeast Alaska
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
Contract Drilling & Blasting LLC notified the Coast Guard that it
will be conducting explosive dredging from 30 minutes after sunrise to
one hour before sunset between December 16, 2019 and January 31, 2020.
The operation will take place approximately 300 yards southwest of
Berth II in Ketchikan, AK. Hazards from explosive dredging include
concussive forces. The COTP has determined that potential hazards
associated with the explosives to be used in this operation would be a
safety concern for anyone above the water's surface within a 500-yard
radius of Pinnacle Rock (located at approximately latitude
55[deg]20'37'' N, longitude 131[deg]38'96'' W).
In response, on November 22, 2019, the Coast Guard published a
notice of proposed rulemaking (NPRM) titled ``Temporary Safety Zone for
Explosive Dredging, Tongass Narrows, Ketchikan, AK'' (84 FR 64445).
There we stated why we issued the NPRM, and invited comments on our
proposed regulatory action related to this safety zone. During the
comment period that ended December 9, 2019, we received eight comments.
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. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
protect the public from the potential safety hazards associated with
the explosive dredging operation, which is scheduled to begin on
December 16, 2019.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231). The COTP has determined that
potential hazards associated with the explosives to be used in this
operation would be a safety concern for anyone above the water's
surface within a 500-yard radius of Pinnacle Rock (located at
approximately latitude 55[deg]20'37'' N, longitude 131[deg]38'96'' W).
The purpose of this rulemaking is to ensure the safety of vessels and
the navigable waters of the Tongass Narrows, from shoreline to
shoreline, within a 500-yard radius of Pinnacle Rock before, during,
and after the scheduled operation December 16, 2019 and January 31,
2020.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received eight comments on our NPRM published on
November 22, 2019. Five comments were supportive. Three comments raised
concerns regarding the operation's affect on marine wildlife. We
considered these comments and
[[Page 69329]]
believe the City of Ketchikan has a sufficient and comprehensive plan
to protect marine wildlife from harm; the city will employ mitigation
measures to include having three dedicated, full-time Protected Species
Observers to monitor the area and will have designated shut down zones
where operations will cease if Alaskan marine mammals are observed.
There are no changes in the regulatory text of this rule from the
proposed rule in the NPRM.
This rule establishes a safety zone from 30 minutes after sunrise
to one hour before sunset between December 16, 2019 and January 31,
2020. The safety zone would cover all navigable waters within 500 yards
of Pinnacle Rock during explosive dredging operations in the Tongass
Narrows located approximately 300 yards southwest of Berth II in
Ketchikan, AK. The duration of the zone is intended to ensure the
safety of vessels and these navigable waters before, during, and after
the daily 35-minute period of explosive dredging. No vessel or person
would be permitted to enter the safety zone without obtaining
permission from the COTP or a designated representative. The regulatory
text appears at the end of this document.
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, this rule 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 size,
location, duration, time-of-day and time-of-year of the safety zone.
Vessel traffic would be able to safely transit around this safety zone,
south of Pennock Island, which would impact a small designated area of
the Tongass Narrows for less than one hour per day when Contract
Drilling & Blasting LLC would decide to detonate the explosives. The
Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine
channel 16 about the zone.
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 received no comments from the Small Business
Administration on this rulemaking. 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.
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 economic 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
call or email 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 rule will 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 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. If
you believe this rule has implications for federalism or Indian tribes,
please call or email 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 will 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, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined 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 a
safety zone lasting less than an hour daily for 47 days that would
prohibit entry within 500 yards of an explosive dredging operation in
the Tongass Narrows. It is categorically excluded from further review
under paragraph L60(a) of Appendix A, Table 1 of DHS
[[Page 69330]]
Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental
Consideration supporting this determination is available in the docket.
For instructions on locating the docket, see the ADDRESSES section of
this preamble.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email 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.
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: 46 U.S.C. 70034, 70051; 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.T17-0838 to read as follows:
Sec. 165.T17-0838 Safety Zone for Explosive Dredging Operations;
Tongass Narrows, Ketchikan, AK.
(a) Location. The following area is a safety zone: All navigable
waters of the Tongass Narrows, from shoreline to shoreline, within a
500-yard radius of Pinnacle Rock (located at approximately latitude
55[deg]20'37'' N, longitude 131[deg]38'96'' W) before, during, and
after the scheduled operation between December 16, 2019 and January 31,
2020.
(b) Definitions. As used in this section:
(1) Captain of the Port (COTP) means the Commander, U.S. Coast
Guard Sector Juneau.
(2) Designated representative means any Coast Guard commissioned,
warrant, or petty officer who has been authorized by the Captain of the
Port Southeast Alaska to assist in enforcing the safety zone described
in paragraph (a) of this section.
(c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or the
COTP's designated representative. All vessels underway within this
safety zone at the time it is activated are to depart the zone.
(2) To seek permission to enter, contact the COTP or the COTP's
designated representative by telephone at 907-463-2980 or on Marine
Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels
enforcing this section can be contacted on Marine Band Radio VHF-FM
channel 16 (156.8 MHz).
(3) Those in the safety zone must comply with all lawful orders or
directions given to them by the COTP or the COTP's designated
representative.
(d) Enforcement officials. The U.S. Coast Guard may be assisted in
the patrol and enforcement of the safety zone by Federal, State, and
local agencies.
(e) Enforcement. This safety zone may be enforced during the period
described in paragraph (f) of this section. Contract Drilling &
Blasting LLC will have two safety vessels on-scene near the location
described in paragraph (a) of this section.
(f) Enforcement period. This section may be enforced from 30
minutes after sunrise to one hour before sunset between December 16,
2019, and January 31, 2020, during explosive dredging operations by
Contract Drilling & Blasting LLC.
Dated: December 10, 2019.
Stephen R. White,
Captain, U.S. Coast Guard, Captain of the Port Southeast Alaska.
[FR Doc. 2019-27195 Filed 12-17-19; 8:45 am]
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