[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Rules and Regulations]
[Pages 1407-1411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-175]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1097]
RIN 1625-AA11


Regulated Navigation Area; Memorial Bridge Construction, 
Piscataqua River, Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The United States Coast Guard is establishing a regulated 
navigation area (RNA) on the navigable waters of the Piscataqua River 
under and surrounding the Memorial Bridge between Portsmouth, NH and 
Kittery, ME. This temporary interim rule is necessary to provide for 
the safety of life on the navigable waters during bridge demolition and 
replacement construction operations. This rule implements certain 
safety measures, including speed restrictions and the temporary 
suspension of vessel traffic during construction operations that could 
be hazardous to nearby vessels.

DATES: This rule is effective in the CFR from January 10, 2012 through 
December 31, 2013. This rule is effective with actual notice for 
purposes of enforcement from December 22, 2011 through December 31, 
2013. Public comments will be accepted and reviewed by the Coast Guard 
through December 31, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-1097 using any one of the following methods:
    (1) Federal e-Rulemaking 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-2011-1097 and are available online by 
going to http://www.regulations.gov, inserting USCG-2011-1097 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 email Lieutenant Junior Grade Terence Leahy of 
the Waterways Management Division, U.S. Coast Guard Sector Northern New 
England; telephone (207) 767-0398, email [email protected] or 
Lieutenant Junior Grade Isaac Slavitt of the Waterways Management 
Division, U.S. Coast Guard First District, email 
[email protected]; telephone (617) 223-8385. 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

[[Page 1408]]

comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have 
provided.
    As this 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-2011-1097), 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 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 email 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-2011-1097'' 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-2011-1097'' 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 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 it was not held specifically to solicit public comments on 
this interim rule and was not announced in the Federal Register, the 
New Hampshire Department of Transportation (NHDOT) held a public 
waterway user meeting on November 29, 2011, at the Portsmouth, NH City 
Hall Building where waterway closures and bridge demolition plans were 
discussed. No comments or concerns were noted during that meeting that 
would impact the drafting of this rule.

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 because immediate action is necessary to ensure the safety of the 
public during demolition of the existing Memorial Bridge and subsequent 
replacement, and it would be contrary to the public interest to delay 
both demolition and construction.
    The need for waterway closures was not brought to the attention of 
the Coast Guard until November 13, 2011 when the New Hampshire 
Department of Transportation (NHDOT) requested a complete waterway 
closure for a 3-day period beginning January 30, 2012. It is 
impracticable to issue an NPRM and take public comment before January 
2012, when the bridge construction that necessitates creation of a 
regulated navigation area (RNA) is scheduled to begin, and when the 
bridge is at risk of immediate failure. Following the conclusion of a 
lengthy bridge study, NHDOT determined that it was immediately 
necessary to replace the existing Memorial Bridge due to concerns that 
the existing structure may suffer a catastrophic failure. A bridge 
failure could inhibit commercial vessels from reaching facilities 
upstream on the Piscataqua River should the center lift span become 
stuck in the down position, blocking the main navigation channel. This 
would have a significant negative economic impact.
    Additionally, any delay or cancellation of the ongoing bridge 
construction plans would be contrary to public interest as the bridge's 
failure could cause regionally significant economic, environmental, and 
safety impacts. The Coast Guard has determined that the prompt 
remediation of the existing structure will mitigate the threat of a 
possible catastrophic failure.
    Once the Coast Guard received notification of these plans on 
November 13, 2011 by NHDOT, and established the need for waterway 
closures and speed restrictions for vessel traffic, it was necessary 
for the Coast Guard to move quickly to protect public safety by 
safeguarding both the mariners and construction workers during the 
bridge's demolition and construction. The dynamic nature of the 
construction process and multitude of construction vessels necessitates 
that all mariners navigate at a safe speed within the RNA in accordance 
with Rule 6 of the Inland Navigation Rules, as the barge and 
construction equipment configuration may change on a daily basis. In 
order to address any further public concerns, this rule is available 
for public comment until December 31, 2013. The Coast Guard will 
publish an amended rule if necessary to address public concerns.
    For the reasons discussed, delaying the project is contrary to the 
public interest, and notice and comment period are impracticable. Under 
5 U.S.C.

[[Page 1409]]

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 and Department 
of Homeland Security Delegation No. 0170.1.
    The purpose of this interim rule is to ensure the safe transit of 
vessels in the area, and to protect all persons, vessels, and the 
marine environment during demolition and reconstruction operations for 
the duration of the Memorial Bridge construction, from January 30, 2012 
through December 31, 2013.

Discussion of Rule

    Due to unanticipated structural failure of the current Memorial 
Bridge, plans were put in place to demolish the existing bridge 
structure as quickly as possible and build a new bridge in the current 
location. The construction of the Memorial Bridge involves large 
machinery and construction vessel operations above and in the navigable 
waters of the Piscataqua River. The ongoing operations are, by their 
nature, hazardous and pose risks both to recreational and commercial 
traffic as well as the construction crew. In order to mitigate the 
inherent risks involved in the construction, it is necessary to control 
vessel movement through the area.
    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) knots 
speed limit and ``NO WAKE'' zone in the 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. The 
RNA will also protect vessels desiring to transit the area by ensuring 
that vessels are only permitted to transit when it is safe to do so.
    The Coast Guard has discussed this project at length with the NHDOT 
to identify if the project can be completed without channel closures 
and, if possible, what impact that would have on the project timeline. 
Through these discussions, it became clear that while the majority of 
construction activities during the span of this project would not 
require waterway closures, there are certain tasks that can only be 
completed in the channel and will require closing the waterway. At 
present, NHDOT has not submitted a complete plan for waterway closures 
due to the expeditious manner that promulgated drafting this regulated 
navigation area.
    On a case-by-case basis, depending on the construction schedule, 
NHDOT may request a waterway closure on various dates from January 30, 
2012 through December 31, 2013. As discussed below, NHDOT will notify 
the Coast Guard of planned activities as soon as possible.
    The COTP Sector Northern New England 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.

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.
    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 the Piscataqua River, 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 substantial number of small 
entities. This rule will affect the following entities some of which 
may be small entities: The owners or operators of marinas, charter 
fishing vessels, commercial fishing vessels, facilities servicing deep 
draft vessels, tugboat operators, and recreational vessels who intend 
to transit in those portions of the Piscataqua River during the 
effective period. Alternatively, smaller vessel traffic can transit to 
the north of Badgers Island and through the backchannel at Seavey 
Island to avoid any delays caused by closures to the waterway around 
the Memorial Bridge. 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.
    This regulation may have some impact on the public, but the 
potential impact will be minimized for the following reasons: it 
requires vessels to reduce speed through 600 yards of the Piscataqua 
River, therefore causing only a minimal delay to a vessel's transit. 
Many parties that have the potential to be affected have been involved 
in the discussions and have made plans to work around the closure 
times. We will use various appropriate means to inform the public 
before, during, and at the conclusion of any RNA enforcement period.
    The RNA will apply to the width of the Piscataqua River within a 
300 yard radius of a position specified in the regulatory text, under 
and surrounding the Memorial Bridge. During full closures to traffic 
under the Memorial Bridge, vessels may be allowed to pass through the 
regulated area with the permission of the COTP.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121),

[[Page 1410]]

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 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 establishment of an RNA. 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.T01-1097 to read as follows:


Sec.  165.T01-1097  Regulated Navigation Area; Memorial Bridge 
Construction, Piscataqua River, Portsmouth, NH.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): All navigable waters, surface to bottom, on the Piscataqua River 
within a 300 yard radius of position 43[deg]04'46'' N, 70[deg]45'10'' W 
in the vicinity of the Memorial Bridge construction zone between 
Portsmouth, NH and Badgers Island in Kittery, ME.
    (b) Regulations.
    (1) The general regulations contained in 33 CFR 165.10, 165.11, and 
165.13 apply within the RNA, and in addition:
    (2) In accordance with the general regulations, entry into or 
movement

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within this zone, during periods of enforcement, is prohibited unless 
authorized by Captain of the Port (COTP) Sector Northern New England.
    (3) A speed limit of five (5) knots will be in effect within the 
regulated area. All vessels must proceed through the area with caution 
and operate in such a manner as to produce no wake.
    (4) Vessels must comply with all directions given to them by the 
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 Hampshire State Police, Maine State Police, 
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.
    (5) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of the vessel must proceed 
as directed.
    (6) All other relevant regulations, including but not limited to 
the Rules of the Road (33 CFR Subchapter E, Inland Navigational Rules) 
remain in effect within the regulated area and should be strictly 
followed at all times.
    (c) Enforcement. This regulated navigation area is enforceable 24 
hours a day from December 22, 2011 until December 31, 2013.
    (1) Notice of suspension of enforcement: If enforcement is 
suspended, the COTP will cause a notice of the suspension of 
enforcement by all appropriate means to be given 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. Such notification will include the date and 
time that enforcement is suspended as well as the date and time that 
enforcement will resume.
    (2) Violations of this regulated navigation area may be reported to 
the COTP Sector Northern New England, at (207) 767-0303 or on VHF-
Channel 16.

    Dated: December 22, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-175 Filed 1-9-12; 8:45 am]
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