[Federal Register Volume 81, Number 234 (Tuesday, December 6, 2016)]
[Rules and Regulations]
[Pages 87813-87815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29260]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0935]
RIN 1625-AA11


Regulated Navigation Area; Portsmouth Naval Shipyard, Kittery, ME 
and Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary regulated 
navigation area (RNA) on the Piscataqua River near the Portsmouth Naval 
Shipyard, Kittery, ME between Henderson Point Light on Seavey Island 
and the Memorial Bridge. This RNA establishes speed restrictions to 
eliminate vessel wake which could endanger the lives of divers and 
support crews working at the Portsmouth Naval Shipyard. The speed 
restrictions apply to all vessels transiting the regulated area unless 
authorized by the First Coast Guard District Commander or the Captain 
of the Port (COTP), Sector Northern New England.

DATES: This rule is effective without actual notice from December 6, 
2016 through June 30, 2017. For the purposes of enforcement, actual 
notice will be used from November 14, 2016, through December 6, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0935 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Craig Lapiejko, Waterways Management, First Coast 
Guard District; telephone (617) 223-8351, email 
[email protected]. You may also call or email Chief Petty 
Officer Chris Bains, Waterways Management Division, U.S. Coast Guard 
Sector Northern New England; telephone (207) 347-5003, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
RNA Regulated Navigation Area
COTP Captain of the Port

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 doing so would be impracticable. The 
Coast Guard was notified of the need for this rule on September 26, 
2016. This late notice did not give the Coast Guard enough time to 
publish a NPRM, take public comments, and issue a final rule before the 
rule is necessary. Delaying implementation of this rule would inhibit 
the Coast Guard's ability to provide for the safety of divers and 
workers completing ship construction at the Portsmouth Naval Shipyard. 
Without the rule, wake from passing vessels could cause the ship to 
move erratically and unexpectedly, severely injuring divers and support 
crews.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register. For reasons stated in 
the preceding paragraph, delaying the implementation of this rule would 
be impracticable.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this temporary rule under authority in 
33 U.S.C. 1231.
    As part of a ship construction project at the Portsmouth Naval 
Shipyard, divers will be in the water from November 14, 2016, through 
June 30, 2016. The Coast Guard First District Commander has determined 
that unexpected and uncontrolled movement of the vessel and associated 
equipment due to a wake puts the divers and their support crews at 
significant risk for serious injury or death. In order to ensure the 
safety of workers during the construction period, the Coast Guard is 
establishing an RNA to limit the speed, thus wake, of all vessels 
operating near the shipyard.

IV. Discussion of the Rule

    This rule places speed restrictions on all vessels transiting the 
navigable waters of the Piscataqua River, Kittery, ME near the 
Portsmouth Naval Shipyard between Henderson Point Light on Seavey 
Island and the Memorial Bridge from 12:01 a.m. on November 14, 2016, 
through 11:59 p.m. on June 30, 2017. The vessels operating within the 
RNA are subject to a ``Slow-No Wake'' speed limit. More specifically, 
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 
steerageway.
    The COTP 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 Broadcast Notice to Mariners and Local Notice 
to Mariners. In addition, COTP Sector Northern New England maintains a 
telephone line that is staffed at all times. The public can obtain 
information concerning enforcement of the RNA by contacting the Sector 
Northern New England Command Center at (207) 767-0303.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the RNA. The public impact of 
this rule will be minimal as the temporary speed restrictions only 
apply to a small designated area of the Piscataqua River, causing 
minimal delay to a vessel's transit.

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B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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.
    While some owners or operators of vessels intending to transit the 
RNA may be small entities, for the reasons stated in section V.A. 
above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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.

F. 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 (42 U.S.C. 4321-4370f), and have determined 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 an RNA lasting 229 days that will limit vessel speed on 
the Piscataqua River in the vicinity of the Portsmouth Naval Shipyard 
while construction work is being completed. It 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 will be 
available in the docket where indicated under ADDRESSES. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this rule.

G. 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, 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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6; Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0935 to read as follows:


Sec.  165.T01-0935   Regulated Navigation Area; Portsmouth Naval 
Shipyard, Kittery, ME and Portsmouth, NH.

    (a) Location. The following area is a regulated navigation area 
(RNA): All navigable waters on the Piscataqua River, Kittery, ME and 
Portsmouth, NH near Portsmouth Naval Shipyard from a line drawn between 
Henderson Point Light ``10'' (LLNR 8375) at 43[deg]04'29.3'' N., 
070[deg]44'10.2'' W. on Seavey Island and Pierce Island Range Front 
Light (LLNR 8355) at 43[deg]04'25.4'' N., 070[deg]44'25.2'' W. to the 
Memorial Bridge at 43[deg]04'46.8'' N., 070[deg]45'09.6'' W.
    (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, vessel movement 
within the RNA is subject to a ``Slow-No Wake'' speed limit. No vessel 
may produce a wake and may not attain speeds greater than five (5) 
knots unless a higher minimum speed is necessary to maintain 
steerageway.
    (3) All vessels operating within the RNA must comply with all 
directions given to them by the Captain of the Port (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 his 
behalf. The on-scene representative may be on a Coast Guard vessel, 
state marine patrol vessel, another other designated

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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.
    (4) All other relevant regulations, including but not limited to 
the Inland Navigation Rules (33 CFR chapter I, subchapter E), remain in 
effect within the RNA and must be strictly followed at all times.
    (c) Enforcement Period. This section will be enforced 24 hours a 
day from November 14, 2016, through June 30, 2017.
    (d) Notifications. Violations of this section may be reported to 
the COTP at (207) 767-0303 or on VHF-Channel 16.

    Dated: November 7, 2016.
S.D. Poulin,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2016-29260 Filed 12-5-16; 8:45 am]
 BILLING CODE 9110-04-P