
[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Rules and Regulations]
[Pages 38923-38926]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16263]



[[Page 38923]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0220]
RIN 1625-AA11


Regulated Navigation Area: Niantic Railroad Bridge Construction, 
Niantic, CT

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments; notice of 
meeting.

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SUMMARY: The United States Coast Guard is establishing a regulated 
navigation area (RNA) on the navigable waters of the Niantic River 
Channel under and surrounding the Amtrak Railroad Bridge that crosses 
Niantic Bay in the Town of Niantic, Connecticut. This temporary interim 
rule allows the Coast Guard to suspend all vessel traffic within the 
RNA for construction operations, both planned and unforeseen, 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 the construction of the Niantic Railroad Bridge.

DATES: This rule is effective in the CFR from July 7, 2010, through 
April 20, 2013, and with actual notice for purposes of enforcement from 
June 20, 2010, through April 20, 2013. Public comments should be 
submitted by August 6, 2010, but will be accepted and reviewed by the 
Coast Guard through April 20, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0220 using any one of the following methods:
    (1) Federal eRulemaking 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-2010-0220 and are available online by 
going to http://www.regulations.gov, inserting USCG-2010-0220 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 interim 
rule, call or e-mail LT Judson Coleman, Prevention Department, Coast 
Guard Sector Long Island Sound, telephone 203-468-4596, e-mail 
Judson.coleman@uscg.mil. 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 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. Alternatively, if the 
bridge construction necessitating the interim rule is completed before 
April 20, 2013, and we receive no public comments that indicate a 
substantive need to revise the rule, we may allow it to expire on that 
date without further regulatory action.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-0220), 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 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-2010-0220'' 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-2010-0220'' 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).

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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 two locally 
announced public meetings, on March 22 and April 15, 2010, where 
waterway closures and restrictions were discussed, and we anticipate 
holding one or more additional informational meetings, with opportunity 
for public questions or comments, during the bridge construction. We 
will provide written summaries of any such meetings in the docket.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior 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 it is 
impracticable and contrary to the public interest to do so. The need 
for waterway closures was not brought to the attention of the Coast 
Guard until March 11, 2010. This left insufficient time to issue an 
NPRM and solicit public comments prior to issuing the interim rule, 
which is necessary to protect the safety of both the construction crew 
and the waterway users operating in the vicinity of the bridge 
construction zone. Further, it would be impracticable and contrary to 
the public interest to delay or cancel this American Recovery and 
Reinvestment Act (ARRA) construction project, because to do so would 
delay necessary repairs thus prolonging the time that construction 
barges and equipment would be in this location. Additionally, 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. Further, the Coast Guard finds that issuance of an 
NPRM followed by a public comment period is unnecessary, because 
locally announced public maritime stakeholder meetings were held on 
March 22 and April 15, 2010, with Coast Guard Sector Long Island Sound, 
Amtrak, First Coast Guard District Bridge Branch, local marinas, town 
police, and small business owners in attendance. The construction plan 
was presented by Amtrak, the bridge owner; public comments and concerns 
were identified and many have been incorporated into this regulation. 
For the same reasons, 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.

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 construction worker and 
public safety for the duration of the Niantic Railroad Bridge 
construction from June 20, 2010 through April 20, 2013.

Discussion of Rule

    This RNA encompasses the navigable waters of the Federal channel on 
the Niantic River in Niantic, Connecticut, within the limits defined in 
the regulation.
    During demolition of the existing Niantic Railroad Bridge and 
construction of its replacement, the Coast Guard may close the RNA to 
all unauthorized vessel traffic during any circumstance, planned or 
unforeseen, that poses an imminent threat to waterway users operating 
in the area. Complete waterway closure will be made with as much 
advance notice as possible and, when closure is planned, at least ten 
days in advance.
    The Coast Guard has discussed this project at length with Amtrak 
and their contractor Cianbro/Middlesex 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. Amtrak issued a letter on May 21, 2010 
detailing the required channel work phases that will need waterway 
closures.
    There currently planned and proposed channel closure periods are 
outlined below:
    The currently planned closure period will be from June 20 through 
October 15, 2010, on Sunday and Monday nights from 10 p.m. to 4:30 
a.m., with two exceptions: (1) The channel will remain open during the 
four days on either side of the full moon to accommodate striped bass 
charters that depart during nighttime hours, and (2) there will be a 
scheduled opening between 1:30 to 2 a.m., from August 1 to October 15 
to accommodate nighttime departures for offshore tuna fishing.
    Other proposed closure periods will be from October 16 through 
December 15, 2010, on Sunday through Thursday nights from 9 p.m. to 5 
a.m.; from December 16, 2010 through March 15, 2011 on Sunday through 
Thursday from 9 a.m. to 5 p.m. and 9 p.m. to 5 a.m.; and from March 16 
through May 15, 2011, on Sunday through Wednesday from 10 p.m. to 4:30 
a.m.
    Closure periods listed above will be made available to Amtrak and 
their contractor with the understanding that the construction schedule 
as well as weather and tide conditions may not allow them to use all 
closures. On a case-by-case basis, depending on the construction 
schedule, Amtrak may request a waterway closure from June 20 through 
October 15, 2010 on Wednesday morning from 12:30 a.m. to 4:30 a.m. 
Amtrak will notify the Coast Guard of planned activities as soon as 
possible; preferably four weeks in advance of any event. The Coast 
Guard will notify the maritime community of those Wednesday dates with 
a waterway closure via Marine Information Broadcasts, Coast Guard Local 
Notice to Mariners and Marine Safety Information Bulletins. Closure 
periods similar to those outlined above should be expected throughout 
the duration of this rule.
    Additionally, during the winter of 2011 and into the early spring 
of 2012 there will be certain tasks (i.e. picking and setting of the 
heel girders and float-in of the new bridge) that will require 12 to 24 
hour closures as well as a seven day closure to float-in and install 
the new bridge. Once these closure periods are identified they will 
also be published in the Federal Register as a notice of enforcement.
    In the event of an emergency all construction equipment will be

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removed from the channel to allow for emergency vessels to pass (i.e., 
Fire Rescue Boat, Marine Police Boat, or Environmental Response Boat).
    The implementation of this RNA does not negate the fact that the 
Inland Rules of the Road as found in 33 CFR part 84 must be strictly 
adhered to. Mariners are strongly urged to monitor VHF channel 13 when 
transiting the area and to communicate with fellow mariners to 
facilitate movement and/or passing arrangements within the channel.
    Any violation of the RNA described herein is punishable by, among 
others, 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.
    The Captain of the Port Sector Long Island Sound (COTP) will cause 
notice of enforcement, suspension of enforcement, or closure of this 
RNA to be made by all appropriate means to effect the widest 
distribution among the affected segments of the public. Such means of 
notification will include, but are not limited to, Notice of 
Enforcement published in the Federal Register, Broadcast Notice to 
Mariners, and Local Notice to Mariners.

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.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, 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.
    This regulation may have some impact on the public, but the 
potential impact will be minimized for the following reasons: Vessels 
are currently scheduled to be excluded from the RNA only at night on 
Sunday and Monday, not including full moon tide weeks for night fishing 
or impacting busy weekend boating times, and vessels will be able to 
operate on all other portions of the Niantic River not covered by the 
RNA. Marine radio broadcasts informing the public of any closures made 
by the RNA will be made before, during, and at the conclusion of the 
RNA closure enforcement periods.

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: Owners or operators of marinas, charter fishing 
vessels and commercial fishing vessels who intend to transit in those 
portions of the Niantic River between June 20, 2010 and April 20, 2013.
    Although the RNA will apply to the entire width of the river, under 
and surrounding the Niantic Railroad Bridge, traffic will be allowed to 
pass through the area with the permission of the COTP. Before the 
effective period, we will issue maritime advisories widely available to 
users of the river.''

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

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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 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.

0
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.t01-0220 to read as follows:


Sec.  165.t01-0220  Regulated Navigation Area: Niantic Railroad Bridge 
Construction, Niantic, Connecticut

    (a) Location. The following area is a regulated navigation area: 
All navigable waters of the Federal channel on the Niantic River in 
Niantic, CT, from surface to bottom, bounded to the north by the 
Highway 156/Main Street Bridge and to the south beginning at a point on 
land located at 41[deg]19[min]26.000[sec] N, 72[deg]10[min]51.000[sec] 
W, then running southeast to position 41[deg]19[min]16.158[sec] N, 
72[deg]10[min]45.519[sec] W (Niantic River Channel Buoy 3 (LLNR 22310)) 
and 41[deg]19[min]15.285[sec] N, 72[deg]10[min]44.867[sec] W (Niantic 
River Channel Buoy 4 (LLNR 22315)), then running east to a point on 
land located at 41[deg]19[min]14.000[sec] N, 72[deg]10[min]38.000[sec] 
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, entry into or 
movement within this zone, during periods of enforcement, is prohibited 
unless authorized by the Captain of the Port, Long Island Sound (COTP).
    (3) All persons and vessels must comply with the COTP or the COTP's 
designated on-scene Coast Guard patrol personnel.
    (4) Upon being hailed by a Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of the vessel must proceed 
as directed.
    (5) Persons and vessels may request permission to enter the zone 
during periods of enforcement on VHF-16 or via phone at 203-468-4401.
    (6) Rules of the Road (33 CFR part 84, Inland Navigational Rules) 
remain in effect and must be strictly adhered to at all times.
    (c) Enforcement Period. (1) This regulated navigation area is 
enforceable 24 hours a day from June 20, 2010 until April 20, 2013.
    (2) The COTP may temporarily suspend enforcement of the RNA. If 
enforcement is suspended, the COTP will cause a notice of the 
suspension of enforcement by all appropriate means to effect 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.
    (3) The COTP may temporarily suspend all traffic through the RNA 
for any situation that would pose imminent hazard to life on the 
navigable waters. In the event of a complete waterway closure, the COTP 
will make advance notice of the closure by all means available to 
effect the widest public distribution including, but are not limited 
to, Broadcast Notice to Mariners and Local Notice to Mariners. Such 
notification will include the date and time of the closure as well as 
the date and time that normal vessel traffic can resume.
    (4) Violations of this regulated navigation area should be reported 
to the Captain of the Port Sector Long Island Sound, at 203-468-4401 or 
on VHF-Channel 16. Persons in violation of this regulated navigation 
area may be subject to civil and/or criminal penalties.

    Dated: June 10, 2010.
J.A. Servidio,
Captain, U.S. Coast Guard, Acting, Commander, First Coast Guard 
District.
[FR Doc. 2010-16263 Filed 7-6-10; 8:45 am]
BILLING CODE 9110-04-P


