[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Rules and Regulations]
[Pages 22228-22231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9800]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0176]
RIN 1625-AA11


Regulated Navigation Area; Lake Champlain Bridge Construction 
Zone, NY and VT

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
around the construction zone of the Lake Champlain Bridge between Crown 
Point, New York and Chimney Point, Vermont. This temporary interim rule 
places speed restrictions on all vessels transiting the navigable 
waters of Lake Champlain in the vicinity of the bridge construction. In 
addition, this rule provides for the temporary suspension of all vessel 
traffic within the regulated navigation area during certain periods of 
construction. This rule is necessary to provide for the safety of life 
on the navigable waters within this regulated area during the 
construction of the Lake Champlain Bridge.

DATES: This rule is effective in the CFR on April 28, 2010. This rule 
is effective with actual notice for purposes of enforcement on April 
23, 2010 and is effective through December 31, 2011. Comments and 
related material must reach the Coast Guard on or before June 28, 2010. 
Requests for public meetings must be received by the Coast Guard on or 
before May 28, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0176 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Documents indicated in this preamble as being available in the 
docket are part of docket USCG-2010-0176 and are available online by 
going to http://www.regulations.gov, inserting USCG-2010-0176 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 interim 
rule, call or e-mail Lieutenant Junior Grade Laura van der Pol, 
Waterways Management Division at 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: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting

[[Page 22229]]

comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.
    As this temporary interim rule will be in effect before the end of 
the comment period, the Coast Guard will evaluate and revise this rule 
as necessary to address significant public comments.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-0176), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2010-0176'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-0176'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. You may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we determine that one would aid revising this rule, we 
will hold one at a time and place announced by a later notice in the 
Federal Register.

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 
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. It is impracticable to issue an NPRM and take public 
comment before April 23, 2010, when the bridge construction that 
necessitates creation of a regulated navigation area (RNA) is scheduled 
to begin. Delaying either the bridge construction, or creation of the 
RNA, would be contrary to the public interest because the bridge will 
be a public convenience and because the RNA will provide for public 
safety by safeguarding both mariners and construction workers during 
the bridge's construction. We are requesting public comment on the RNA, 
and if we receive public input that indicates a need to revise the RNA 
or the conditions it imposes, or raises any other significant public 
concerns, we will address those concerns prior to issuing any final 
rule. For the same reasons, 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.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety. See 33 U.S.C. 1231; Department of 
Homeland Security Delegation No. 0170.1.
    Due to unanticipated structural failure of the old Lake Champlain 
Bridge, that bridge was demolished in December 2009 and plans were put 
in place to build a new bridge at that location as expediently as 
possible. The construction of the new Lake Champlain Bridge involves 
large machinery and construction vessel operations above and upon the 
navigable waters of Lake Champlain between Crown Point, New York and 
Chimney Point, Vermont. The ongoing operations are, by their nature, 
hazardous and pose risks both to recreational and commercial vessel 
traffic and the bridge construction crew. In order to mitigate the 
inherent risks involved in the construction, it is necessary to control 
vessel movement through the area.
    The purpose of this rule is to ensure public and construction 
worker safety for the duration of the planned Lake Champlain Bridge 
construction, which is scheduled to begin April 23, 2010 and be 
completed in 2011. Heavy-lift operations are sensitive to water 
movement, and wake from passing vessels could pose significant risk of 
injury or death to construction workers. In order to minimize such 
unexpected or uncontrolled movement of water, the RNA will limit vessel 
speed and wake of all vessels operating in the vicinity of the bridge 
construction zone. This will be achieved by enforcing a five (5) mile 
per hour speed limit and ``NO WAKE'' zone in vicinity of the 
construction as well as providing a means to suspend all vessel traffic 
for emergent situations that pose imminent threat to waterway users in 
the area.

Discussion of Rule

    This regulated navigation area encompasses the navigable waters on 
Lake Champlain 300 yards to the north and south of the bridge 
construction

[[Page 22230]]

zone at Crown Point, New York and Chimney Point, Vermont. The area is 
bounded by coordinates: 44[deg]01'59'' N, 073[deg]25'31'' W and 
44[deg]02'04'' N, 073[deg]25'28'' W to the north, and 44[deg]01'56'' N, 
073[deg]25'08'' W and 44[deg]01'53'' N, 073[deg]25'14'' W to the south. 
The area will be marked with four white and orange-striped ``NO WAKE'' 
buoys to define the start and end of the regulated area.
    All vessels operating in this area must proceed with caution, and 
operate at no more than five knots and in a manner so as to produce no 
wake. In addition, the Coast Guard may close this area to all vessel 
traffic during any circumstance that poses an imminent threat to 
waterway users operating in the area. We will give as much advance 
notice as possible when this occurs. Normally, we expect complete 
closures to be preceded by at least ten days notice.
    Notice will include the date and time of the closure as well as the 
date and time that normal vessel traffic is expected to resume. At 
present, we expect at least two days when the area will be completely 
closed, during the final phase of construction when the center bridge 
spans are lifted into place, but those days have not yet been 
scheduled.
    The Captain of the Port Sector Northern New England (COTP) will 
cause notice of enforcement, suspension of enforcement, or closure of 
this regulated navigation area to be made by all appropriate means to 
ensure the widest distribution among the affected segments of the 
public. Such means of notification will include, but are not limited 
to, Broadcast Notice to Mariners and Local Notice to Mariners. In 
addition, the COTP 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 Coast Guard 
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 requires vessels to reduce speed through 
600 yards of Lake Champlain, therefore causing only a minimal delay to 
a vessel's transit. In addition, periods when the regulated navigation 
area is closed to all traffic are expected to be short in duration, and 
we expect to give advance notice of such closures.

Small Entities

    Under the Regulatory Flexibility Act (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: Lake Champlain Transportation Company, Champlain 
Bridge Marina, Van Slooten Marina, Port Henry Marina, Chipman Point 
Marina, Buoy 39 Marina, and the owners or operators of vessels 
intending to transit the portion of Lake Champlain affected by this 
rule between April 23, 2010 and December 31, 2011. This regulated 
navigation area will not have a significant economic impact on a 
substantial number of small entities for the following reasons: It 
requires vessels to reduce speed through 600 yards of Lake Champlain, 
therefore causing only a minimal delay to a vessel's transit. In 
addition, periods when the regulated navigation area is closed to all 
traffic are expected to be short in duration, and we expect to give 
advance notice of such closures.

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 (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.

Taking of Private Property

    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.

Civil Justice Reform

    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.

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

[[Page 22231]]

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 
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 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 are available in the docket where indicated 
under ADDRESSES. Any comments received concerning environmental impacts 
will be considered and changes made to the environmental analysis 
checklist and categorical exclusion determination as appropriate.

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; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.



0
2. Add Sec.  165.T01-0176 to read as follows:


Sec.  165.T01-0176  Regulated Navigation Area; Lake Champlain Bridge 
Construction, Crown Point, New York and Chimney Point, Vermont.

    (a) Description of the regulated navigation area (RNA). All 
navigable waters on Lake Champlain 300 yards to the north and south of 
the Lake Champlain Bridge construction zone at Crown Point, New York 
and Chimney Point, Vermont. The area is bounded by coordinates 
44[deg]01'59'' N, 073[deg]25'31'' W and 44[deg]02'04'' N, 
073[deg]25'28'' W to the north, and 44[deg]01'56'' N, 073[deg]25'08'' W 
and 44[deg]01'53'' N, 073[deg]25'14'' W to the south. The area will be 
marked with four white and orange-striped ``NO WAKE'' buoys to define 
the start and end of the regulated area.
    (b) Regulations. In addition to 33 CFR 165.10, 165.11, and 165.13, 
the following restrictions or conditions apply within this RNA:
    (1) No vessel may operate at a speed in excess of five knots.
    (2) All vessels must proceed through the area with caution and 
operate in such a manner as to produce no wake.
    (3) Vessels must comply with all directions given to them by the 
Captain of the Port (COTP) Sector Northern New England or his on-scene 
representative. The ``on-scene representative'' of the COTP is any 
Coast Guard commissioned, warrant, or petty officer who has been 
designated by the COTP to act on the COTP's behalf. The on-scene 
representative may be on a Coast Guard vessel, New York State Police, 
New York Department of Environmental Conservation, Vermont State 
Police, and Vermont Fish and Game 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 may be present to 
inform vessel operators of this regulation.
    (4) During certain construction activities including installation 
of the bridge lift span and as deemed necessary by the COTP, all vessel 
movement into or within the regulated area may be prohibited.
    (5) For purposes of navigational safety, the COTP or on-scene 
representative may authorize a deviation from this regulation.
    (c) Enforcement. (1) This regulated navigation area is enforceable 
from April 23, 2010 through December 31, 2011.
    (2) The COTP may temporarily suspend all vessel traffic through the 
RNA, temporarily suspend enforcement of the RNA, or suspend enforcement 
of the RNA at the conclusion of bridge construction. In any of these 
events, the COTP will give notice by all appropriate means to ensure 
the widest publicity among the affected segments of the public. Such 
means of notification may include, but are not limited to, Broadcast 
Notice to Mariners and Local Notice to Mariners. Notification will 
include the beginning and end dates and times when the traffic 
suspension or enforcement suspension is effective.
    (3) Violations of this RNA should be reported to the COTP at (207) 
767-0303 or on VHF-Channel 16. Persons in violation of this RNA may be 
subject to civil and criminal penalties.

    Dated: April 19, 2010.
J.A. Servidio,
Captain, U.S. Coast Guard, Commander, First Coast Guard District, 
Acting.
[FR Doc. 2010-9800 Filed 4-27-10; 8:45 am]
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