[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Rules and Regulations]
[Pages 49843-49847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20119]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0666]
RIN 1625-AA11


Regulated Navigation Area; Boom Deployment Strategy Testing, 
Great Bay, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is temporarily establishing a regulated 
navigation area (RNA) in navigable waters near Great Bay, New 
Hampshire. This temporary regulation is in effect while the New 
Hampshire Department

[[Page 49844]]

of Environmental Services (NHDES) conducts boom deployments to test the 
effectiveness of oil spill response strategies, and is necessary to 
ensure the safety of exercise participants and the maritime public from 
hazards associated with the boom deployment exercise. While the RNA is 
in effect, all vessels must transit at bare steerageway and comply with 
directions from the Captain of the Port.

DATES: This rule is effective from August 16, 2010 through October 31, 
2010. Comments and related material must reach the Coast Guard on or 
before September 15, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0666 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary interim rule, call or e-mail Lieutenant Commander David 
Sherry, Response Department at Coast Guard Sector Northern New England; 
telephone 207-741-5492, email [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

    This temporary interim rule will be in effect before the end of the 
comment period, but we encourage you to participate in this rulemaking 
by submitting comments and related materials. We may evaluate and 
revise this rule as necessary to address significant public comments. 
All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have 
provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-0666), 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 the Coast Guard can contact you with 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-2010-0666'' 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[frac12] 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-2010-0666'' 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. But 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 this rulemaking, 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 interim rule without 
prior notice 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. Delay would be both impracticable and contrary to the public 
interest in preparing for possible oil spills. The Coast Guard received 
less than four weeks of notice of the exact location and times of the 
boom deployment, and thus did not have sufficient time to issue a NPRM 
without delaying the effective date of this rulemaking. Delaying the 
effective date by first publishing a NPRM and holding a 30 day comment 
period would be contrary to the rule's objectives of ensuring public 
safety during this exercise as immediate action is needed to protect 
persons and vessels from the hazards associated with these boom 
deployments. The exercise's timing was influenced by tidal timetables 
and could not be changed without diminishing the effectiveness of the 
exercise. The Coast Guard encourages members of the public to 
participate in this rulemaking by making comments using one of the four 
methods specified under ADDRESSES.

[[Page 49845]]

    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. In addition to the reasons stated 
above, any delay in the effective date of this regulation would be 
contrary to the public interest as immediate action is necessary to 
protect participants, waterway users, and spectators from the hazards 
associated with boom deployments on the water.

Basis and Purpose

    Maritime response exercises and training events are frequently held 
within the Captain of the Port Sector Northern New England Zone. The 
New Hampshire Department of Environmental Services (NHDES) plans to 
deploy boom, a flotation device used to contain oil, in the waters of 
Great Bay, NH in the vicinity of Goat Island and Little Bay, New 
Hampshire on August 25 and 26, 2010 as well as on September 8 and 9, 
2010 and October 6 and 7, 2010. These exercises will provide critical 
data on the effectiveness of geographic response strategies designed to 
protect sensitive environmental areas in the event of an oil or 
chemical spill in navigable waters during the maximum tide cycles. To 
conduct an effective test, boom must be deployed across the waterway 
during maximum current, a period of approximately four hours when the 
current averages four to five knots in planned boom deployment 
locations.
    Based on the nature of these tests, the Coast Guard has determined 
that the boom deployments could pose a risk to participants or waterway 
users if waterway use is not restricted. This RNA is intended to 
protect the safety of all waterway users and exercise participants.
    For each day of the exercises, waterway use will be restricted for 
up to an eleven hour period to allow for deployment, testing, and 
recovery of boom. During these times, vessels may be diverted through 
an alternate channel, escorted by the on-scene patrol vessels through 
segments of boom, or could be ordered to wait until the current has 
subsided and the boom removed to allow for safe passage through the 
area.
    The purpose of this rule is to provide an effective means to ensure 
the safety of persons and vessels operating in the RNA during these 
boom deployments. As there will be hazards introduced to the waterway 
in testing these booming strategies, the Coast Guard determined that 
measures dictating the speed, route, and times when vessels may transit 
through the regulated area are necessary to facilitate safe vessel 
movement. The Coast Guard and NHDES have taken steps to minimize the 
impact this exercise will have on local mariners, including altering 
the deployment test plans to accommodate vessel transits, installing 
temporary aids to divert traffic around the deployment areas, and 
providing vessel escorts through the RNA. The RNA measures are intended 
to accommodate mariners, to the extent possible, while ensuring their 
and the exercise participants' safety.

Discussion of Rule

    A chartlet depicting the boundaries of the RNA and the boom 
deployments for each day that the RNA is in effect will be included in 
the docket where indicated under ADDRESSES.
    Within the regulated area, boom deployment strategies will be 
tested in two areas: The first area (Area One) stretches across the 
Oyster River from Cedar Point to Goat Island and further south to Fox 
Point; the second area (Area Two) is near the entrance to Little Bay 
just south of Durham Point and Fox Point. In order to accommodate 
vessel traffic, the deployment strategy for each area will be spread 
across two days.
    On the first day, boom will be deployed between Goat Island and Fox 
Point for Area One and just north of rocks marked by the Rock Buoy 
``4'' (LLNR 8585) on the western side of the Little Bay entrance for 
Area Two. On the second day, boom will be deployed north of Goat Island 
for Area One and, from a point starting 350 feet east of the Rock Buoy 
``4'' (LLNR 8585) to a point southeast on the Fox Point peninsula for 
Area Two.
    For the first day of testing, vessel traffic will be able to 
transit through the main channel (Area One) until the boom is in place 
for the maximum current testing; specific times are listed below. 
During that time, vessel traffic may be diverted to the north of Goat 
Island with the channel marked by temporary aids. An on-scene patrol 
vessel will remain east of Goat Island to inform vessels of the 
temporary channel and boom location.
    On the second day of testing, there will be a 350 foot space to the 
east of the Rock Buoy ``4'' (LLNR 8585) to accommodate vessel traffic 
for the duration of the exercise. Additionally, an on-scene patrol 
vessel will remain in the area to advise mariners of the modified 
channel and boom location.
    For all boom deployment days, NHDES and Coast Guard vessels will be 
on scene to give notice of this regulation, indicate boom locations, 
and to escort mariners safely through the RNA. In addition to these 
safety measures, all boom will be marked with 32-inch floating balls to 
make the ends of each boom segment more visible to mariners.
    Since the boom strategy testing is located in an area subject to 
heavy currents, shoaling, and moderate vessel traffic, this regulation 
is needed to protect spectators, participants, and other waterway users 
from the extra hazards introduced by the boom deployment. The exercise 
will occur in three phases on each day: a set-up deployment phase, boom 
strategy testing during the period of maximum tidal current, and a 
recovery. Each phase of the exercise is anticipated to take place 
during the following times on each of the scheduled dates:
    (1) Wednesday, August 25 and Thursday, August 26, 2010:

Deployment: 6 a.m.-9:30 a.m.
Maximum current: 9:30 a.m.-1:30 p.m.
Recovery: 1:30 p.m.-5 p.m.

    (2) Wednesday, September 8 and Thursday, September 9, 2010:

Deployment: 6 a.m.-8:30 a.m.
Maximum current: 8:30 a.m.-12:30 p.m.
Recovery: 12:30 p.m.-4 p.m.

    (3) Wednesday, October 6 and Thursday, October 7, 2010:

Deployment: 6 a.m.-7:30 a.m.
Maximum current: 7:30 a.m.-11:30 a.m.
Recovery: 11:30 a.m.-3 p.m.

    All persons and vessels are required to transit the RNA at bare 
steerageway and in a manner so as to produce no wake for the duration 
of the enforcement period. The nature of the boom deployment, 
environmental conditions, and the fact that navigation will be confined 
to narrow areas in some locations makes transiting the RNA above bare 
steerageway a hazard to both vessel operators and exercise 
participants.
    During the enforcement period of the regulation, vessel operators 
must comply with all directions given to them by the Captain of the 
Port or his designated representative. While boom is being deployed and 
recovered (times indicated above), vessels that can do so may transit 
through the RNA at bare steerageway unless instructed otherwise by the 
Captain of the Port or his designated representative.
    While boom is anchored in place during maximum current testing 
periods, the waterway may be restricted or closed entirely. During 
these periods (times indicated above), mariners desiring to enter or 
transit through the RNA must first receive permission from the Captain 
of the Port or his designated representative. Mariners can request 
permission to transit from Captain of the

[[Page 49846]]

Port Sector Northern New England by hailing the Coast Guard On-Scene 
Commander on VHF channel 16 or by calling (603) 436-4415.
    The ``designated 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 
representative may be on a Coast Guard vessel, State vessel or other 
designated craft, or may be on shore and will communicate with vessels 
via VHF-FM radio or loudhailer. The On-Scene Commander will be a vessel 
carrying a Captain of the Port designated representative. Members of 
the Coast Guard and NHDES will be present to inform vessel operators of 
this regulation as well as to escort them through the regulated area.
    The Coast Guard and NHDES will conduct extensive public outreach to 
notify local businesses, mariners, and agencies of the scheduled boom 
deployments. Advanced public notifications will also be made to the 
local maritime community through Local Notice to Mariners and Safety 
Marine Information Broadcasts.

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.
    The Coast Guard determined that this rule is not a significant 
regulatory action for the following reasons: The regulation will be of 
limited duration, vessels will still be able to navigate through the 
area, and slowing to bare steerageway will cause only minor delays in 
mariners' voyages.

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 may affect the following entities, some of which 
may be small entities: The Great Bay Marina, the Little Bay Marina, and 
the owners or operators of vessels intending to transit or anchor in 
the RNA during the enforcement period.
    This regulation will not have a significant economic impact on a 
substantial number of small entities for the following reasons: It is 
of limited duration, vessels will still be able to navigate through the 
area, and mariners will be given prior notice to plan for the waterway 
restriction. Additionally, prior to the enforcement period of this 
rule, the Coast Guard will issue notice of the time and location of the 
RNA through a Local Notice to Mariners and Safety Marine Information 
Broadcast.

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 an 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 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

[[Page 49847]]

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 as this rule involves establishing a temporary RNA. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, and 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. Chapters 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.T01-0666 to read as follows:


Sec.  165.T01-0666  Regulated Navigation Area; Boom Deployment Strategy 
Testing, Great Bay, New Hampshire.

    (a) Locations. This rule creates a temporary regulated navigation 
area (RNA) for all navigable waters within the following coordinates: 
To the east, a line drawn between the easternmost end of the Scammel 
Bridge (Route 4) in position 43[deg]07'41.5'' N, 070[deg]50'42.2'' W 
southwest to the prominent point of land on Fox Point east of Hen 
Island in position 43[deg]07'11.5'' N, 070[deg]51'02.6'' W; to the 
west, a line that crosses the mouth of the Oyster River between the 
charted pipeline area in position 43[deg]07'28.2'' N, 070[deg]52'09.1'' 
W south to Durham Point in position 43[deg]07'20.2'' N, 
070[deg]52'19.5'' W; to the south, a line crossing Little Bay from 
where Edgerly Garrison Road meets the water in position 
43[deg]06'42.4'' N, 070[deg]52'03.7'' W to the east in position 
43[deg]06'39.2'' N, 070[deg]51'16.5'' W.
    (b) Enforcement Period. This section will be enforced between 6 
a.m. and 5 p.m. on August 25 and 26, September 8 and 9, and October 6 
and 7, 2010.
    (c) Regulations. (1) All vessels operating within the RNA must 
comply with 33 CFR 165.10, 165.11, and 165.13, and the provisions of 
this paragraph (c).
    (2) Vessels operating within the RNA must comply with all 
directions given to them by the Captain of the Port Sector Northern New 
England (COTP) or his designated representative.
    (3) All persons and vessels are required to transit the RNA at bare 
steerageway and in a manner so as to produce no wake.
    (4) During maximum tidal current periods, mariners desiring to 
enter or transit through the RNA must first receive permission from the 
COTP or his designated representative. Maximum tidal current periods 
are as follows:
    (i) Wednesday, August 25 and Thursday, August 26, 2010 maximum 
current: 9:30 a.m.-1:30 p.m.
    (ii) Wednesday, September 8 and Thursday, September 9, 2010 maximum 
current: 8:30 a.m.-12:30 p.m.
    (iii) Wednesday, October 6 and Thursday, October 7, 2010 maximum 
current: 7:30 a.m.-11:30 a.m.
    (5) Vessel operators wishing to transit through the RNA during the 
times specified above can request permission to transit from the COTP 
by hailing the Coast Guard On-Scene Commander on VHF channel 16 or by 
calling (603) 436-4415.
    (6) The ``designated representative'' of the COTP is any Coast 
Guard commissioned, warrant or petty officer who has been designated by 
the COTP to act on his behalf. The representative may be on a Coast 
Guard vessel, State agency 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 and New Hampshire Department of 
Environmental Services may be present to inform vessel operators of 
this regulation as well as to escort them through the area.

    Dated: August 2, 2010.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2010-20119 Filed 8-13-10; 8:45 am]
BILLING CODE 9110-04-P