
[Federal Register Volume 77, Number 47 (Friday, March 9, 2012)]
[Rules and Regulations]
[Pages 14276-14279]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5782]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0084]
RIN 1625-AA11


Regulated Navigation Area; Little Bay Bridge Construction, Little 
Bay, Portsmouth, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) on the navigable waters of Little Bay in the Piscataqua River 
under and surrounding the Little Bay and General Sullivan Bridges in 
order to facilitate construction of the Little Bay Bridge between 
Newington, NH and Dover, NH. This temporary interim rule is necessary 
to provide for the safety of life on the navigable waters during bridge 
construction operations that could pose an imminent hazard to vessels 
operating in the area. This rule implements certain safety measures, 
including speed restrictions and the temporary suspension of vessel 
traffic during construction operations.

DATES: This rule is effective in the CFR from March 9, 2012 through 
July 31, 2013, and effective with actual notice for purposes of 
enforcement from February 28, 2012, through July 31, 2013. Public 
comments will be accepted and reviewed by the Coast Guard through July 
31, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2012-0084 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-2012-0084 and are available online by 
going to http://www.regulations.gov, inserting USCG-2012-0084 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 Ensign Elizabeth V. Morris of the 
Waterways Management Division, U.S. Coast Guard Sector Northern New 
England, telephone 207-741-5440, email Elizabeth.V.Morris@uscg.mil; or 
Lieutenant Junior Grade Isaac Slavitt of the Waterways Management 
Branch, U.S. Coast Guard First District, telephone 617-223-8385, email 
Isaac.M.Slavitt@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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2012-0084), 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

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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-2012-0084'' 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-2012-0084'' 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.

Regulatory Information

    The Coast Guard is issuing this temporary 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 construction of the existing Little Bay Bridge. 
The need for waterway closures was not brought to the attention of the 
Coast Guard until January 30, 2012 when the New Hampshire Department of 
Transportation (NHDOT) requested a complete waterway closure for an 
eight and a half hour period tentatively scheduled for April 10, 2012.
    The Coast Guard discussed with NHDOT a number of alternatives to 
complete waterway closure, including delaying this portion of 
construction to allow the Coast Guard to publish a notice of proposed 
rulemaking with respect to this rule, rerouting traffic through an 
alternate channel, or arranging the construction barges and cranes in a 
manner that leaves a portion of the main channel navigable. A delay 
until at least the middle of May would unnecessarily prolong 
construction and increase costs to the public. In addition, the 
construction operations are currently ongoing, and construction barges 
and cranes are already in place. Delaying bridge repairs to allow for a 
full notice and comment period while repair equipment is already in 
place is contrary to the public interest due to increased cost to 
taxpayers. Furthermore, facilitating a waterway closure to allow bridge 
repairs before recreational boater traffic escalates in May is in the 
public's interest because it will reduce the impact of the waterway 
closure on the public.
    For the reasons discussed, delaying the project would be contrary 
to the public interest. 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 temporary interim rule is to ensure the safe 
transit of vessels in the area, and to protect persons, vessels, and 
the marine environment during construction operations for the duration 
of the Little Bay Bridge construction.

Discussion of Rule

    The construction of the Little Bay Bridge involves large machinery 
and construction vessel operations on and over the navigable waters of 
Little Bay in the Piscataqua River. The ongoing operations are 
hazardous by their nature, and pose risks both to recreational and 
commercial traffic, as well as to the construction crew. In order to 
mitigate the inherent risks involved in construction, it is necessary 
to control vessel movement through the area.
    The purpose of this temporary interim rule is to ensure the safe 
transit of vessels in the area, and to protect persons, vessels, and 
the marine environment during construction operations for the duration 
of the Little Bay Bridge construction work through July 31, 2013.
    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 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 may close the regulated area 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

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will be made with as much advanced notice as possible. At present, we 
expect at least two days when the area will be completely closed, but 
those days have not yet been scheduled by the project managers.
    The Captain of the Port (COTP) Sector Northern New England will 
cause notice of enforcement to be made by appropriate means to ensure 
the widest distribution 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. 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.
    Entry into the regulated area during a closure is prohibited unless 
specifically authorized by the Sector Northern New England Captain of 
the Port (COTP). Any violation of this RNA is punishable by 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.

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 only requires vessels to reduce speed 
through 600 yards of Little Bay, therefore causing only a minimal delay 
to a vessel's transit. In addition, periods when the regulated 
navigation area will be closed to all traffic are expected to be short 
in duration, and the Coast Guard will 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, and recreational vessels 
who intend to transit in those portions of Little Bay beneath the new 
Little Bay Bridge during the effective period. In addition, periods 
when the regulated navigation area is closed to all traffic are 
expected to be short in duration, and the Coast Guard expects 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 only 600 yards of Little Bay, 
therefore causing only a minimal delay to a vessel's transit. We will 
use various appropriate means to inform the public before, during, and 
at the conclusion of any RNA enforcement period.

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.
    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

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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.T01-0084 to read as follows:


Sec.  165.T01-0084  Regulated Navigation Area; Little Bay Bridge 
Construction, Little Bay, Portsmouth, NH.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): all navigable waters of Little Bay between Newington, NH and 
Dover, NH, from surface to bottom, within a 300 yard radius of position 
43[deg]07'05'' N, 070[deg]49'33'' W.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 apply within the RNA. In addition, the 
following regulations apply:
    (2) In accordance with the general regulations, entry into or 
movement within this zone, during periods of enforcement, is prohibited 
unless authorized by Captain of the Port Sector Northern New England 
(COTP).
    (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) All persons and vessels must comply with all directions given 
to them by the COTP 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 vessel, New Hampshire 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 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 part 84--Subchapter E, Inland 
Navigational Rules) remain in effect within the regulated area and must 
be strictly followed at all times.
    (c) Enforcement Period. (1) This section is enforceable from 
February 28, 2012 until 11:59 p.m. on July 31, 2013.
    (2) The COTP will give notice of enforcement by appropriate means 
to inform the affected segments of the public, and such notification 
will include dates and times. Means of notification may include, but 
are not limited to, Broadcast Notice to Mariners and Local Notice to 
Mariners.
    (d) Penalties. Failure to comply with this section may result in 
civil or criminal penalties pursuant to the Ports and Waterways Safety 
Act, 33 U.S.C. 1221 et seq. Report violations of this regulated 
navigation area to the COTP Sector Northern New England, at 207-767-
0303 or on VHF--Channel 16.

    Dated: February 28, 2012.
J.B. McPherson,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 2012-5782 Filed 3-8-12; 8:45 am]
BILLING CODE 9110-04-P


