[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Rules and Regulations]
[Pages 53885-53887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25263]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0895]
RIN 1625-AA11


Regulated Navigation Area; Portsmouth Naval Shipyard, Portsmouth, 
NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation area on 
the Piscataqua River near Portsmouth, NH. This temporary final rule 
places speed restrictions on all vessels transiting the navigable 
waters on the Piscataqua River, Portsmouth, NH near the Portsmouth 
Naval Shipyard between Henderson Point Light on Seavey Island and 
Badgers Island Buoy 14. This rule is necessary to provide for the 
safety of life on the navigable waters during ongoing ship 
construction.

DATES: This temporary final rule is effective from 7 a.m. on October 
21, 2009, until 5 p.m. on November 15, 2009. This temporary final rule 
is enforceable with actual notice by Coast Guard personnel beginning 
October 15, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0895 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0895 in the 
``Keyword'' box and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary final rule, call Lieutenant Junior Grade Laura van der Pol, 
Waterways Management Division Chief, U.S. Coast Guard Sector Northern 
New England, telephone 207-741-5421, e-mail 
[email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    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 the Portsmouth Naval Facility will be 
beginning diving operations in this area within a short timeframe thus 
making publication of a NPRM and Final Rule impractical. Further, this 
regulated navigation area is necessary to provide for the safety of the 
divers and others working in the area as wake from passing vessels 
could cause the ship to move erratically and unexpectedly, injuring the 
divers and their support crews. Not providing for the safety of the 
divers and others in the area is contrary to the public interest of 
creating a safe work environment.
    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 necessary to 
provide for the safety of divers and workers on the vessel as well as 
to minimize the risk to commercial vessels and recreational boaters who 
transit the area. In addition to the reasons stated within this 
preamble, a delay in the effective date of this rule is contrary to the 
public's interest in ensuring the ship construction project continues 
as scheduled.

Background and Purpose

    As part of ongoing ship construction projects at the Portsmouth 
Naval Shipyard, vessels are being launched, creating a period of 
particular sensitivity to the personnel and equipment involved. 
Specifically, divers will be working on the hull of a vessel for 
approximately four weeks beginning on October 15, 2009. Underwater work 
includes the removal and installation of heavy equipment. Unexpected 
and uncontrolled movement of the vessel while divers are in the water 
creates a significant risk of serious injury or death. Additionally, 
loading operations

[[Page 53886]]

onto ships that are severely constrained by their draft could also be 
adversely affected by unexpected and uncontrolled movement. Wake 
produced from vessels operating in the vicinity of the Portsmouth Naval 
Shipyard could cause unexpected and uncontrolled movement of the 
vessels in the shipyard. In order to minimize such unexpected and 
uncontrolled movement during the timeframe that divers will be 
operating and vessel loading conducted, the Coast Guard is creating a 
regulated navigation area to limit the speed, and thus wake, of all 
vessels operating in the vicinity of the shipyard.

Discussion of Rule

    This regulated navigation area encompasses all the navigable waters 
on the Piscataqua River in Portsmouth, NH near the Portsmouth Naval 
Shipyard between Henderson Point Light 10 (LLNR 8375; 43-04-29.319N, 
070-44-10.189W) on Seavey Island and Badgers Island Buoy 14 (LLNR 8405; 
43-04-51.951N, 070-45-21.518W).
    All vessels operating in this area shall proceed with caution; 
operate at no more than 5 knots and in a manner so as to produce no 
wake. Diving operations may occur at any time, at day or night, during 
the effective period of the rule; however, the regulated navigation 
area will only be enforced during times when divers are conducting 
underwater operations and during vessel loading operations.
    The Captain of the Port Sector Northern New England will cause 
notice of enforcement or suspension of enforcement of this regulated 
navigation area to be made by all appropriate means to affect the 
widest distribution among the affected segments of the public. Such 
means of notification will include, but is not limited to, Broadcast 
Notice to Mariners and Local Notice to Mariners. The Captain of the 
Port will issue a Broadcast Notice to Mariners notifying the public 
when enforcement of the regulated navigation area is suspended. In 
addition, Captain of the Port Sector Northern New England maintains a 
telephone line that is staffed 24 hours a day, seven days a week. The 
public can obtain information concerning enforcement of the regulated 
navigation area by contacting Sector Northern New England Command 
Center at (207) 767-0303.

Regulatory Analyses

    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.

Regulatory Planning and Review

    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.
    We expect the economic impact of this rule to be minimal because 
this regulated navigation area only requires vessels to reduce speed 
through a small section of the Piscataqua River therefore only causing 
a small delay to a vessel's transit. Further, the regulation is only 
enforced when a vessel's wake would cause undue risk to life and safety 
of personnel at the Portsmouth Naval Shipyard. The regulation period is 
for approximately one month.

Small Entities

    Under the Regulatory Flexibility Act (RFA) (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 the portion of the Piscataqua River affected by this rule 
between October 15, 2009 and November 15, 2009. This regulated 
navigation area will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule allows vessels to continue to transit through the regulated area, 
but only at a reduced speed. The reduced speed area is relatively small 
(approximately 1 nautical mile) and will only be enforced when 
necessary to protect the safety of personnel at the Portsmouth Naval 
Shipyard. Further, the Coast Guard will advise mariners as to the 
enforcement of the regulated navigation area through broadcast and 
local notice to mariners thus allowing mariners to plan their transits 
accordingly.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect 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

[[Page 53887]]

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 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 the category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under Figure 2-1, 
paragraph (34)(g), of the Instruction. This rule involves the 
establishing of a regulated navigation area and therefore falls within 
the categorical exclusion noted above. An environmental analysis 
checklist and a 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.

0
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. 1226, 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, and 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0895 to read as follows:


Sec.  165.T01-0895  Regulated Navigation Area; Piscataqua River, 
Portsmouth, NH.

    (a) Description of the regulated navigation area (RNA): All 
navigable waters on the Piscataqua River, Portsmouth, NH and Kittery, 
ME near the Portsmouth Naval Shipyard between Henderson Point Light 10 
(LLNR 8375; 43-04-29.319N, 070-44-10.189W) on Seavey Island and Badgers 
Island Buoy 14 (LLNR 8405; 43-04-51.951N, 070-45-21.518W).
    (b) Regulations: (1) The general regulations contained in 33 CFR 
165.10, 165.11 and 165.13 apply.
    (2) In accordance with the general regulations, the restrictions 
contained in paragraphs (b)(2)(i) through (b)(2)(iv) of this section 
apply to all vessels operating within the regulated area noted above.
    (i) No vessel may operate in this regulated area at a speed in 
excess of five knots.
    (ii) All vessels must proceed through the area with caution and 
operate in such a manner as to produce no wake.
    (iii) Vessels operating within the regulated navigation area must 
comply with all directions given to them by the Captain of the Port 
Sector Northern New England or his on-scene representative. The ``on-
scene representative'' of the Captain of the Port is any Coast Guard 
commissioned, warrant or petty officer who has been designated by the 
Captain of the Port to act on his behalf. The on-scene representative 
may be on a Coast Guard vessel, State Marine Patrol vessel or other 
designated craft, or may be on shore and will communicate with vessels 
via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary or 
Naval Harbor Security Patrol may be present to inform vessel operators 
of this regulation.
    (iv) For purposes of navigational safety, the Captain of the Port 
or on-scene representative may authorize a deviation from this 
regulation.
    (c) Enforcement. (1) This regulated navigation area is enforceable 
24 hours a day from October 15, 2009 until November 15, 2009.
    (2) Notice of suspension of enforcement: The Captain of the Port 
Sector Northern New England may temporarily suspend enforcement of the 
regulated navigation area. If enforcement of the zone is temporarily 
suspended, the Captain of the Port Sector Northern New England will 
cause a notice of the suspension of enforcement of this regulated 
navigation area to be made by all appropriate means to effect the 
widest publicity among the affected segments of the public. Such means 
of notification may also include but are not limited to, Broadcast 
Notice to Mariners or Local Notice to Mariners. Such notification will 
include the date and time that enforcement is suspended as well as the 
date and time that enforcement will resume.
    (3) Violations of this regulated navigation area should be reported 
to the Captain of the Port Sector Northern New England, at (207) 767-
0303 or on VHF-Channel 16. Persons in violation of this regulated 
navigation area may be subject to civil and/or criminal penalties.

    Dated: October 13, 2009.
Joseph L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-25263 Filed 10-20-09; 8:45 am]
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