[Federal Register Volume 78, Number 230 (Friday, November 29, 2013)]
[Rules and Regulations]
[Pages 71495-71497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28609]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0956]
RIN 1625-AA11


Regulated Navigation Area; Portsmouth Naval Shipyard, Piscataqua 
River, Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

DATES: This rule is effective without actual notice from November 29, 
2013 until 5:00 p.m. on December 6, 2013. For the purposes of 
enforcement, actual notice will be used from 7:00 a.m. on November 21, 
2013 until November 29, 2013.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2013-0956. To view documents mentioned in this preamble as 
being available in the docket, go to http://www.regulations.gov, type 
the docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on 
``Open Docket Folder'' on the line associated with this rulemaking. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Junior Grade Elizabeth V. Morris, Waterways 
Management Division at Coast Guard Sector Northern New England, 
telephone 207-767-0398, email [email protected]; or 
Lieutenant Myles Greenway, Waterways Management at Coast Guard First 
District, telephone 617-223-8385, email [email protected]. If 
you have questions on viewing or submitting material to the docket, 
call Barbara Hairston, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
RNA Regulated Navigation Area

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the Coast Guard was not notified of 
the need for this rule until 31 October 2013, and the Portsmouth Naval 
Facility will begin diving operations in this area within a short 
timeframe making publication of a NPRM and Final Rule impracticable.

[[Page 71496]]

    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. For the reasons discussed in the 
preceding paragraph, delaying the effective date of this rule would be 
impracticable.

B. Basis and Purpose

    Under the Ports and Waterways Safety Act, 33 U.S.C. 1221 et. seq., 
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.
    As part of ongoing ship construction projects at the Portsmouth 
Naval Shipyard, divers will be working on the hull of a vessel for 
approximately two weeks beginning on November 21, 2013. Unexpected and 
uncontrolled movement of the vessel due to wake while divers are in the 
water would create a significant risk of serious injury or death to 
vessel workers and divers. In order to ensure the safety of vessel 
workers and divers during the period of ship construction work, the 
Coast Guard is creating a regulated navigation area to limit the speed, 
and thus wake, of all vessels operating in the vicinity of the 
shipyard.

C. Discussion of Rule

    This action will establish a temporary Regulated Navigation Area 
that places speed restrictions on all vessels transiting the navigable 
waters on the Piscataqua River, Portsmouth, NH near the Portsmouth 
Naval Shipyard between Henderson Point Light on Seavey Island and 
Badgers Island Buoy 14 when necessary for the safety of navigation 
during periods of dive operations. All vessels operating in this area 
must proceed with caution; operate at no more than 5 knots and in a 
manner so as to produce no wake. Diving operations and other vessel 
construction may occur at any time, day or night. This regulated 
navigation area will provide for the safety of the divers and others 
working in the area as wake from passing vessels could cause the ship 
to move erratically and unexpectedly, injuring the divers and their 
support crews.
    The Captain of the Port Sector Northern New England will cause 
notice of enforcement or suspension of enforcement of this regulated 
navigation area to be made by all appropriate means in order to affect 
the widest distribution among the affected segments of the public. Such 
means of notification will include, but is not limited to, Broadcast 
Notice to Mariners and Local Notice to Mariners. In addition, Captain 
of the Port Sector Northern New England maintains a telephone line that 
is staffed 24 hours a day, seven days a week. The public can obtain 
information concerning enforcement of the regulated navigation area by 
contacting Sector Northern New England Command Center at (207) 767-
0303.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and executive orders.

1. Regulatory Planning and Review

    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, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under these Orders.
    The Coast Guard determined that this rulemaking will not be a 
significant regulatory action for the following reasons: vessel traffic 
will only be required to operate at no-wake speeds within the RNA and 
the RNA covers only a small portion of the navigable waterway. Advanced 
public notifications will also be made to local mariners through 
appropriate means, which might include, but would not be limited to, 
Local Notice to Mariners and Broadcast Notice to Mariners.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
the portion of the Piscataqua River affected by this rule between 
August 5, 2011 and September 5, 2011.
    This RNA will not have a significant economic impact on a 
substantial number of small entities for all the reasons discussed in 
the Regulatory Planning and Review section above.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the ``For Further 
Information Contact'' section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

[[Page 71497]]

7. 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.

8. 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.

9. 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.

10. Protection of Children From Environmental Health Risks

    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 will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it will 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.

12. Energy Effects

    This rule is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 because it involves the establishing of a 
regulated navigation area. 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 
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. 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.T01-0956 to read as follows:


Sec.  165.T01-0956  Regulated Navigation Area; Portsmouth Naval 
Shipyard, 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, Portsmouth, NH and Kittery, ME near the Portsmouth Naval 
Shipyard between 43[deg]04'29.319'' N, 070[deg]44'10.189'' W (Henderson 
Point Light 10, LLNR 8375) on Seavey Island and 43[deg]04'51.951'' N, 
070[deg]45'21.518'' W (Badgers Island Buoy 14, LLNR 8405).
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11 and 165.13 apply.
    (2) In accordance with the general regulations, the following 
restrictions apply to all vessels operating within the regulated area 
noted above.
    (i) No vessel may operate in this regulated area at a speed in 
excess of five knots.
    (ii) All vessels must proceed through the area with caution and 
operate in such a manner as to produce no wake.
    (iii) Vessels operating within the regulated navigation area must 
comply with all directions given to them by the Captain of the Port 
Sector Northern New England or his on-scene representative.
    (iv) The ``on-scene representative'' of the Captain of the Port is 
any Coast Guard commissioned, warrant or petty officer who has been 
designated by the Captain of the Port to act on his behalf. The on-
scene representative may be on a Coast Guard vessel, State Marine 
Patrol vessel or other designated craft, or may be on shore and will 
communicate with vessels via VHF-FM radio or loudhailer. Members of the 
Coast Guard Auxiliary or Naval Harbor Security Patrol may be present to 
inform vessel operators of this regulation.
    (v) For purposes of navigational safety, the Captain of the Port or 
on-scene representative may authorize a deviation from this regulation.
    (c) Effective and enforcement period. (1) This regulated navigation 
area is effective and will be enforced from 7:00 a.m. on November 21, 
2013 until 5:00 p.m. on December 6, 2013.
    (2) Notice of suspension of enforcement: The Captain of the Port 
Sector Northern New England may temporarily suspend enforcement of the 
regulated navigation area. If enforcement of the zone is temporarily 
suspended, the Captain of the Port Sector Northern New England will 
cause a notice of the suspension of enforcement of this regulated 
navigation area to be made by all appropriate means. Such means of 
notification may include, but are not limited to, Broadcast Notice to 
Mariners or Local Notice to Mariners. Such notification will include 
the date and time that enforcement is suspended as well as the date and 
time that enforcement will resume.
    (3) Violations of this regulated navigation area should be reported 
to the Captain of the Port Sector Northern New England, at (207) 767-
0303 or on VHF-Channel 16. Persons in violation of this regulated 
navigation area may be subject to civil and/or criminal penalties.

    Dated: November 15, 2013.
V.B. Gifford,
Captain, U.S. Coast Guard Acting Commander, First Coast Guard District.
[FR Doc. 2013-28609 Filed 11-27-13; 8:45 am]
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