[Federal Register Volume 76, Number 181 (Monday, September 19, 2011)]
[Rules and Regulations]
[Pages 57910-57913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23916]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0868]
RIN 1625-AA11


Regulated Navigation Area; Route 24 Bridge Construction, Tiverton 
and Portsmouth, RI

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 
(RNA) on the navigable waters of the Sakonnet River under and 
surrounding construction of the new Route 24 bridge that crosses the 
Sakonnet River between Tiverton and Portsmouth, Rhode Island. This rule 
implements certain safety measures including establishment of a 
temporary channel beneath the bridge, speed restrictions, and 
suspension of all vessel traffic within the RNA during construction 
operations that could pose an imminent hazard to vessels operating in 
the area. This rule is necessary to provide for the safety of life on 
the navigable waters during construction of the Route 24 bridge over 
the main channel of the Sakonnet River.

DATES: This rule is effective on September 19, 2011 until 11:59 p.m. on 
May 1, 2013. This rule is effective with actual notice for purposes of 
enforcement from 8 a.m. on September 9, 2011, until 11:59 p.m. on May 
1, 2013. Public comments may be submitted throughout the effective 
period.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0868 using any one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     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.
     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-2011-0868 and are available online by 
going to http://www.regulations.gov, inserting USCG-2011-0868 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 rule, call or e-mail Mr. Edward G. LeBlanc, Chief of the 
Waterways Management Division, U.S. Coast Guard Sector Southeastern New 
England; telephone 401-435-2351, e-mail [email protected], or 
Lieutenant Junior Grade Isaac Slavitt, Coast Guard First District 
Waterways Management Branch, telephone 617-223-8385, 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 
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-2011-0868), 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-2011-0868'' 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-2011-0868'' 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.,

[[Page 57911]]

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 in connection with the 
public comment period for this interim rule. 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.
    Although they were not held specifically to solicit public comments 
on this interim rule and were not announced in the Federal Register, 
the Coast Guard has held or participated in several locally announced 
informal waterway user meetings, including a Rhode Island Port Safety 
Forum on August 11, 2011, attended by approximately 70 people, an on-
site meeting with local elected and appointed officials on August 17, 
2011, and a locally advertised, informal meeting on August 24, 2011, 
attended by approximately 45 people.
    Potential waterway closures, temporary channels, and navigation 
safety measures were discussed at these meetings. The temporary channel 
and navigation safety measures discussed at these meetings were 
generally well received by those in attendance. Stakeholder comments 
and concerns were identified and many have been incorporated into this 
regulation. To view the stakeholder comments see the meeting minutes in 
the docket.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior Federal 
Register 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. The need for waterway closures was not brought to the attention 
of the Coast Guard until July 14, 2011, when the Rhode Island 
Department of Transportation (RI DOT) requested a complete waterway 
closure for a 30-day period beginning August 14, 2011.
    The Coast Guard discussed with RI DOT a number of alternatives to 
complete waterway closure, including delaying this portion of 
construction until after the traditional boating season, which ends 
around November 1 each year, or arranging the construction barges and 
cranes in a manner that leaves a portion of the main channel navigable, 
or scheduling work so that the main channel is clear for at least a 
block of hours each day. A delay until November 1 would risk 
construction complications from colder late autumn weather, and because 
construction barges and cranes are already in place, any delay would 
necessarily prolong the construction operation and increase its cost to 
the public. For engineering reasons, to allow the lifting of huge steel 
girders that will span the main channel, construction equipment must be 
placed across the entire channel. For each day that construction was 
delayed due to the inability to place equipment in the main channel, RI 
DOT estimated it would cost Rhode Island taxpayers $100,000. The Coast 
Guard and RI DOT, after consulting with local elected and appointed 
officials and harbormasters, concluded that allowing the construction 
equipment to obstruct the main channel, coupled with a temporary 
channel around the construction to be established by the Coast Guard, 
was the preferred alternative.
    We were concerned that the waterway obstruction proposed by RI DOT 
might have a significant impact on waterway users, so it was necessary 
to move quickly to protect the safety of workers and the public, and 
facilitate construction during optimal weather conditions that were 
deemed by RI DOT as an engineering necessity. Because of the cost to 
the public of any construction delay, and because the imminence of the 
planned construction work left insufficient time for compliance with 
APA notice and comment procedures, it would have been contrary to the 
public interest and impracticable to follow those procedures before 
issuing this rule. Moreover, to the extent we had met with many of the 
persons most likely to be affected by the rule and we addressed many of 
their concerns in drafting this rule, following APA notice and comment 
procedures before issuing this rule was unnecessary. In order to 
address any further public concerns, this rule is available for 
subsequent public comment as long as it is in force, and if comments 
indicate a need to amend the rule, we will consider doing so.
    For the same reasons, we also find that good cause exists, under 5 
U.S.C. 553(d)(3), 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 and Department 
of Homeland Security Delegation No. 0170.1.
    The purpose of this rule is to ensure the safety of waterway users, 
the public, and construction workers for the duration of the new Route 
24 bridge construction over the main channel of the Sakonnet River 
during construction operations.

Discussion of Rule

    This action is intended to control vessel traffic for the duration 
of the new Route 24 bridge construction over the main channel of the 
Sakonnet River. Construction is now underway and may last until May 1, 
2013. The Coast Guard may close the regulated area described in this 
rule to all vessel traffic during any circumstance that poses an 
imminent threat to waterway users operating in the area. Complete 
waterway closures will be made with as much advance notice as possible.
    During the period where the main channel of the Sakonnet River is 
obstructed and a temporary channel is established, both the aids to 
navigation marking the temporary channel and navigation safety measures 
will be published with 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, Local Notice to Mariners, 
and Marine Safety Information Bulletins distributed by e-mail to the 
local maritime community, including every person who attended the 
meetings noted above and who provided an e-mail address upon 
registering.
    Entry into this RNA during a closure is prohibited unless 
authorized by the Sector Southeastern New England Captain of the Port 
(COTP). Any

[[Page 57912]]

violation of this RNA is punishable by civil and criminal penalties, in 
rem liability against the offending vessel, and the initiation of 
suspension or revocation proceedings against Coast Guard-issued 
merchant-mariner credentials.

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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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.

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 substantial number of small 
entities. This rule will affect the following entities some of which 
may be small entities: The owners or operators of local marinas and 
businesses (such as waterside restaurants), or vessels who intend to 
transit in the Sakonnet River beneath the new Route 24 bridge between 
September 9, 2011 and May 1, 2013.
    This regulation may have some impact on small entities, but the 
potential impact will be minimized for the following reasons: Any 
temporary channel or other safety measures will allow most mariners to 
continue to transit the Sakonnet River beneath the new Route 24 bridge. 
Additionally, vessels can bypass the Sakonnet River by using an 
alternate route up through the East Passage of Narragansett Bay to 
reach a destination above the Route 24 Bridge. We expect that any 
complete closure of the RNA will be brief. We will use various 
appropriate means to inform the public before, during, and at the 
conclusion of any RNA enforcement period.

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. If this rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please call LT Judson Coleman, Prevention 
Department, Sector Long Island Sound, at 203-468-4596.
    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 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

[[Page 57913]]

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 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 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.

    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, 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.T01-0868 to read as follows:


Sec.  165.T01-0868  Regulated Navigation Area; Route 24 Bridge 
Construction, Sakonnet River, Rhode Island.

    (a) Location. The following area is a regulated navigation area: 
All navigable waters of the Sakonnet River between Tiverton and 
Portsmouth, RI, from surface to bottom, within 100 yards of the Route 
24 bridge over the Sakonnet River.
    (b) Regulations. The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 apply within the RNA, and in addition:
    (1) Each person or vessel within the RNA must comply with the 
directions of the Captain of the Port Sector Southeastern New England 
(COTP) or the COTP's designated on-scene patrol personnel and must 
comply with all applicable regulations including but not limited to the 
Rules of the Road (33 CFR Subchapter E, Inland Navigational Rules);
    (2) The COTP may close the RNA or establish a marked temporary 
channel within the RNA at any time to protect public safety;
    (3) Each vessel using the temporary channel must not exceed 47 feet 
in height from the waterline, have a draft not exceeding 17 feet, and 
enter the temporary channel only if it is completely clear of all other 
vessel traffic; and
    (4) Each vessel approaching the temporary channel and equipped with 
a VHF radio must make an appropriate ``Securite'' radio call to notify 
approaching vessel traffic;
    (c) Effective period; enforcement. This section is effective from 8 
a.m. on September 9, 2011, until 11:59 p.m. on May 1, 2013. Paragraph 
(b) of this section may be enforced at any time within that period. The 
COTP and designated on-scene patrol personnel will notify the public 
whenever paragraph (b) is in force and whenever enforcement is lifted. 
Notification may be by Broadcast Notice to Mariners, Local Notice to 
Mariners, Marine Safety Information Bulletins, or by siren, radio, 
flashing light, or other hailing by a Coast Guard vessel.
    (d) Violations. Report violations of this regulated navigation area 
to the COTP at 508-457-3211 or on VHF-Channel 16.

    Dated: September 7, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-23916 Filed 9-16-11; 8:45 am]
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