[Federal Register Volume 80, Number 6 (Friday, January 9, 2015)]
[Rules and Regulations]
[Pages 1338-1341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00182]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2014-0554]
RIN 1625-AA11


Regulated Navigation Area; Sarah Mildred Long Bridge Replacement, 
Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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 Sarah Mildred Long Bridge between Portsmouth, 
NH and Kittery, ME. This RNA will allow the United States Coast Guard 
to enforce speed and wake restrictions and limit vessel traffic through 
the RNA during bridge replacement operations, both planned and 
unforeseen, which could pose an imminent hazard to persons and vessels 
operating in the area. This rule is necessary to provide for the safety 
of life on the navigable waters during bridge structural repair 
operations.

DATES: This rule is effective from January 9, 2015 until May 31, 2019. 
This rule has been enforced with actual notice since December 31, 2014.

ADDRESSES: Documents mentioned in this preamble as being available in 
the docket are part of docket USCG-2014-0554. 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 Lieutenant Commander Myles Greenway, Waterways Management at First 
Coast Guard District at 617-223-8385 or email at 
[email protected]; or call Lieutenant Junior Grade David T. 
Bourbeau, Waterways Management Division at Coast Guard Sector Northern 
New England, at 207-347-5015 or email at [email protected]. If 
you have questions on viewing or submitting

[[Page 1339]]

material to the docket, call Cheryl Collins, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
MEDOT Maine Department of Transportation
NHDOT New Hampshire Department of Transportation
NOAA National Oceanic and Atmospheric Administration
NPRM Notice of Proposed Rulemaking
NAD 83 North American Datum of 1983
RNA Regulated Navigation Area

A. Regulatory History and Information

    The MEDOT applied for a bridge construction permit with the Coast 
Guard on August 15, 2013. The United States Coast Guard issued Public 
Notice 1-137 on February 10, 2014, which was published on the United 
States Coast Guard Navigation Center Web site and the First Coast Guard 
District--Bridge Branch Web site, and solicited comments through March 
12, 2014. Three comments were received in response to the public 
notice: one comment was a statement of no objection and two comments 
were in favor of the project.
    On August 25, 2014, we published a NPRM entitled Regulated 
Navigation Area; Sarah Mildred Long Bridge Replacement, Portsmouth, NH 
in the Federal Register (79 FR 50565). We received 2 comments on the 
proposed rule. Those comments are discussed below.
    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. The comment period for the Notice 
of Proposed Rulemaking ended on September 24, 2014. There was 
insufficient time to prepare and publish this Final Rule by November 
30, 2014, which was thirty days before the start of bridge construction 
and the need for the rule. Changing the bridge construction schedule to 
accommodate the regulation is impractical and unnecessary because the 
impact of this regulation on the waterway will be minimal.

B. 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; 46 U.S.C. 
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of 
Homeland Security Delegation No. 0170.1.
    MEDOT will replace the existing vertical lift bridge over the 
Piscataqua River, which carries the U.S. Route 1 Bypass from 
Portsmouth, NH, to Kittery, ME, with a hybrid vertical lift bridge on 
an upstream alignment. The project is necessary to replace a 
structurally and operationally deficient bridge that has exceeded its 
useful life. In the normal vehicle use mode, the new vertical lift 
bridge will provide a vertical clearance through the main channel of 56 
feet above mean high water (MHW) in the closed position and 135 feet 
above MHW in the open position, and a horizontal clearance of 250 feet 
measured normal to the axis of the channel. When closed to normal 
vehicle use (i.e. in rail use mode), the new bridge will provide a 
vertical clearance through the main channel of 16 feet MHW.
    The construction of the new Sarah Mildred Long Bridge will involve 
large machinery and construction vessel operations above and in the 
navigable waters of the Piscataqua River. These operations, by their 
nature, are 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.
    The purpose of this rule is to ensure the safe transit of vessels 
in the area, and to protect all persons, vessels, construction crews, 
and the marine environment during bridge construction operations on the 
Piscataqua River between Portsmouth, NH and Kittery, ME.

C. Discussion of Comments, Changes and the Final Rule

    Two comments were received on Docket No. USCG-2014-0554. The first 
comment questioned whether the waterway is ``navigable''. As per 33 CFR 
2.36, the Piscataqua River is a U.S. navigable waterway. The second 
comment questioned the specified latitude and longitude in the NPRM and 
whether the coordinates are based on North American Datum of 1983 (NAD 
83) horizontal datum. The comment suggested that if the latitude and 
longitude coordinates are NAD 83 then it should be stated in the final 
rule. Upon confirming this with NOAA, ``(NAD 83)'' was added to the 
regulatory text.
    Construction 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 implementing a five (5) 
knot 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 
and MEDOT 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 
will not require waterway closures, there are certain tasks that can 
only be completed in the channel and will require closing the waterway.
    The Coast Guard may close the RNA 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 advanced notice as possible.
    Further, the speed limit of five (5) knots will be in effect at all 
times within the RNA and all vessels must proceed through the area with 
caution and operate in such a manner as to produce no wake unless a 
higher minimum speed is necessary to maintain bare steerage. The Coast 
Guard will rely on the methods described in 33 CFR 165.7 to notify the 
public of the time and duration of any closure of the RNA.

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

[[Page 1340]]

Budget has not reviewed it under those Orders.
    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, 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 will provide advance notice of such closures so that the boating 
public can plan transits accordingly. Such notifications will be made 
to local mariners through appropriate means, such as 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 would affect the following entities, some of which might 
be small entities: the owners or operators of vessels intending to 
transit or anchor in the regulated navigation area while it is being 
enforced. This rule will not have a significant economic impact on a 
substantial number of small entities for all of the reasons discussed 
in the Regulatory Planning and Review section.

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.

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 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 made a 
determination that 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 involves the establishment of an RNA and thus, 
is categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist supporting this determination 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.


[[Page 1341]]


    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, 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.T01-0554 to read as follows:


Sec.  165.T01-0554  Regulated Navigation Area; Sarah Mildred Long 
Bridge Replacement, Portsmouth, NH.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): All navigable waters of the Piscataqua River between Portsmouth, 
NH and Kittery, ME, from surface to bottom, within a 300 yard radius of 
position 43[deg]05'10'' N, 070[deg]45'38'' W (NAD 83), center point of 
the existing Sarah Mildred Long Bridge.
    (b) Regulations. (1) The general regulations contained in 
Sec. Sec.  165.10, 165.11, and 165.13 apply within the RNA.
    (2) Any vessel transiting through the RNA must make a direct 
passage. No vessel may stop, moor, anchor or loiter within the RNA at 
any time unless they are working on the bridge construction. Movement 
within the RNA is subject to a ``Slow-No Wake'' speed limit. All 
vessels may not produce a wake and may not attain speeds greater than 
five (5) knots unless a higher minimum speed is necessary to maintain 
bare steerageway.
    (3) There may be times that the First District Commander or the 
Captain of the Port (COTP) finds it necessary to close the RNA to 
vessel traffic. All closures will be limited to specific hours of the 
day. Mariners will be advised of all closure dates and times via Local 
Notice to Mariners and Broadcast Notice to Mariners in advance of 
closure times. During times of limited closure, persons and vessels may 
request permission to enter the RNA by contacting the COTP or the 
COTP's on-scene representative on VHF-16 or via phone at 207-767-0303.
    (4) Any vessels transiting in the RNA must comply with all 
directions given to them by the COTP or the COTP's 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; or other designated 
craft; or on shore and communicating 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) All other relevant regulations, including but not limited to 
the Rules of the Road, as codified in 33 CFR subchapter E, Inland 
Navigational Rules, remain in effect within the RNA and must be 
strictly followed at all times.
    (c) Enforcement period. This regulation is enforceable 24 hours a 
day from 12:01 a.m. on December 31, 2014 until 11:59 p.m. on May 31, 
2019.
    (d) Notification. The Coast Guard will rely on the methods 
described in Sec.  165.7 to notify the public of the time and duration 
of any closure of the RNA. Violations of this RNA may be reported to 
the COTP at 207-767-0303 or on VHF-Channel 16.

    Dated: December 22, 2014.
L.L. Fagan,
Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2015-00182 Filed 1-8-15; 8:45 am]
BILLING CODE 9110-04-P