Safety Zone; M/V JACOB PIKE Dead Ship Tow, Harpswell, ME to South Portland, ME

Safety Zone; M/V JACOB PIKE Dead Ship Tow, Harpswell, ME to South Portland, ME

Supplementary Information

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port Sector Northern New England

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

TFR Temporary Final Rule

M/V Motor Vessel

II. Background Information and Regulatory History

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 specifics details concerning the salvage operations associated with the M/V JACOB PIKE and the subsequent transit to a facility were not received in time to publish an NPRM and seek comments before the subject transit. Publishing an NPRM and delaying the effective date of this rule to await public comments would be impracticable and contrary to the public interest since it would inhibit the Coast Guard's ability to fulfill its statutory missions to protect the safety of the public, and vessels transiting the waters of the Casco Bay during the dead ship movement of the M/V JACOB PIKE.

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 impractical because immediate action is needed to minimize the potential safety hazards associated with the salvage and dead ship movement of the M/V JACOB PIKE.

III. Legal Authority and Need for Rule

Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Northern New England (COTP) has determined that potential hazards associated with the salvage recovery and dead ship movement of the M/V JACOB PIKE will be a safety concern for anyone within 200-yards radius of the M/V JACOB PIKE and any towing vessel supporting the operation. This rule is needed to protect personnel, vessels, and the marine environment during the salvage operation and during the dead ship movement of the M/V JACOB PIKE from its location in Harpswell, ME, along its route to Turner Island Marine Rail located in South Portland, ME.

IV. Discussion of the Rule

This rule establishes a temporary safety zone August 6, 2024, through August 31, 2024, however the zone will only be enforced while the M/V JACOB PIKE, an 83-foot wooden sardine carrier which sank early this year, is dead ship towed. The moving 200-yard safety zone will be established for the M/V JACOB PIKE and all towing vessels supporting its operations during transit from Harpswell, ME though Casco Bay to Turner Island Marine Rail located on the Fore River in South Portland, ME. Salvage operations are expected to begin August 6, 2024, and take three days. Once the M/V JACOB PIKE is raised the dead ship tow transit is anticipated to take eight hours. The salvage date and dead ship tow transit is tentative and subject to change due to weather or other unforeseen circumstances. The Coast Guard is proposing this rule remain effective through August 31, 2024, in case the salvage operation is delayed due to weather or other unforeseen circumstances. The COTP will issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) of the exact date and times in advance of the enforcement period to the local maritime community. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the dead ship movement of M/V JACOB PIKE while transiting the Casco Bay area. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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. 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).

This regulatory action determination is based on the size, location, duration and time-of-day of the safety zone. The zone is limited in size, location, and duration as it will cover a portion of navigable waters off Harpswell, ME, Casco Bay, and the Fore River in South Portland, ME within a 200-yard radius of the vessel M/V JACOB PIKE and any towing vessels supporting the operation. The zone is limited in scope as vessel traffic may be able to safely transit around this safety zone and vessels may seek permission from the COTP to enter the zone. The zone is limited in duration in that it will be enforced for approximately three days surrounding salvage operations and another eight hours for the dead ship tow transit. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety 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 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 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 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 temporary safety zone that will move and prohibit entry within a 200-yard radius around the recovery of the M/V JACOB PIKE and its dead ship tow from Harpswell, ME to South Portland, ME. This zone is expected to last approximately eight-hours during the dead ship tow movement. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary 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. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule. 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.

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