Regulated Navigation Area; Route 24 Bridge Construction, Tiverton and Portsmouth, RI |
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D.A. Neptun
Federal Register
September 19, 2011
[Federal Register Volume 76, Number 181 (Monday, September 19, 2011)]
[Rules and Regulations]
[Pages 57910-57913]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23916]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2011-0868]
RIN 1625-AA11
Regulated Navigation Area; Route 24 Bridge Construction, Tiverton
and Portsmouth, RI
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 the Sakonnet River under and
surrounding construction of the new Route 24 bridge that crosses the
Sakonnet River between Tiverton and Portsmouth, Rhode Island. This rule
implements certain safety measures including establishment of a
temporary channel beneath the bridge, speed restrictions, and
suspension of all vessel traffic within the RNA during construction
operations 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 construction of the Route 24 bridge over
the main channel of the Sakonnet River.
DATES: This rule is effective on September 19, 2011 until 11:59 p.m. on
May 1, 2013. This rule is effective with actual notice for purposes of
enforcement from 8 a.m. on September 9, 2011, until 11:59 p.m. on May
1, 2013. Public comments may be submitted throughout the effective
period.
ADDRESSES: You may submit comments identified by docket number USCG-
2011-0868 using any one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Fax: 202-493-2251.
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.
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-2011-0868 and are available online by
going to http://www.regulations.gov, inserting USCG-2011-0868 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 e-mail Mr. Edward G. LeBlanc, Chief of the
Waterways Management Division, U.S. Coast Guard Sector Southeastern New
England; telephone 401-435-2351, e-mail Edward.G.LeBlanc@uscg.mil, or
Lieutenant Junior Grade Isaac Slavitt, Coast Guard First District
Waterways Management Branch, telephone 617-223-8385, e-mail
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 temporary 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-2011-0868), 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 http://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-2011-0868'' 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-2011-0868'' 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.,
[[Page 57911]]
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.
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 several locally announced
informal waterway user meetings, including a Rhode Island Port Safety
Forum on August 11, 2011, attended by approximately 70 people, an on-
site meeting with local elected and appointed officials on August 17,
2011, and a locally advertised, informal meeting on August 24, 2011,
attended by approximately 45 people.
Potential waterway closures, temporary channels, and navigation
safety measures were discussed at these meetings. The temporary channel
and navigation safety measures discussed at these meetings were
generally well received by those in attendance. Stakeholder comments
and concerns were identified and many have been incorporated into this
regulation. To view the stakeholder comments see the meeting minutes in
the docket.
Regulatory Information
The Coast Guard is issuing this 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. The need for waterway closures was not brought to the attention
of the Coast Guard until July 14, 2011, when the Rhode Island
Department of Transportation (RI DOT) requested a complete waterway
closure for a 30-day period beginning August 14, 2011.
The Coast Guard discussed with RI DOT a number of alternatives to
complete waterway closure, including delaying this portion of
construction until after the traditional boating season, which ends
around November 1 each year, or arranging the construction barges and
cranes in a manner that leaves a portion of the main channel navigable,
or scheduling work so that the main channel is clear for at least a
block of hours each day. A delay until November 1 would risk
construction complications from colder late autumn weather, and because
construction barges and cranes are already in place, any delay would
necessarily prolong the construction operation and increase its cost to
the public. For engineering reasons, to allow the lifting of huge steel
girders that will span the main channel, construction equipment must be
placed across the entire channel. For each day that construction was
delayed due to the inability to place equipment in the main channel, RI
DOT estimated it would cost Rhode Island taxpayers $100,000. The Coast
Guard and RI DOT, after consulting with local elected and appointed
officials and harbormasters, concluded that allowing the construction
equipment to obstruct the main channel, coupled with a temporary
channel around the construction to be established by the Coast Guard,
was the preferred alternative.
We were concerned that the waterway obstruction proposed by RI DOT
might have a significant impact on waterway users, so it was necessary
to move quickly to protect the safety of workers and the public, and
facilitate construction during optimal weather conditions that were
deemed by RI DOT as an engineering necessity. Because of the cost to
the public of any construction delay, and because the imminence of the
planned construction work left insufficient time for compliance with
APA notice and comment procedures, it would have been contrary to the
public interest and impracticable to follow those procedures before
issuing this rule. Moreover, to the extent we had met with many of the
persons most likely to be affected by the rule and we addressed many of
their concerns in drafting this rule, following APA notice and comment
procedures before issuing this rule was unnecessary. In order to
address any further public concerns, this rule is available for
subsequent public comment as long as it is in force, and if comments
indicate a need to amend the rule, we will consider doing so.
For the same reasons, we also find that good cause exists, under 5
U.S.C. 553(d)(3), 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 the safety of waterway users,
the public, and construction workers for the duration of the new Route
24 bridge construction over the main channel of the Sakonnet River
during construction operations.
Discussion of Rule
This action is intended to control vessel traffic for the duration
of the new Route 24 bridge construction over the main channel of the
Sakonnet River. Construction is now underway and may last until May 1,
2013. 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 will be made with as much advance notice as possible.
During the period where the main channel of the Sakonnet River is
obstructed and a temporary channel is established, both the aids to
navigation marking the temporary channel and navigation safety measures
will be published with 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, Local Notice to Mariners,
and Marine Safety Information Bulletins distributed by e-mail to the
local maritime community, including every person who attended the
meetings noted above and who provided an e-mail address upon
registering.
Entry into this RNA during a closure is prohibited unless
authorized by the Sector Southeastern New England Captain of the Port
(COTP). Any
[[Page 57912]]
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.
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 local marinas and
businesses (such as waterside restaurants), or vessels who intend to
transit in the Sakonnet River beneath the new Route 24 bridge between
September 9, 2011 and May 1, 2013.
This regulation may have some impact on small entities, but the
potential impact will be minimized for the following reasons: Any
temporary channel or other safety measures will allow most mariners to
continue to transit the Sakonnet River beneath the new Route 24 bridge.
Additionally, vessels can bypass the Sakonnet River by using an
alternate route up through the East Passage of Narragansett Bay to
reach a destination above the Route 24 Bridge. We expect that any
complete closure of the RNA will be brief. 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. 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 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
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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.
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.T01-0868 to read as follows:
Sec. 165.T01-0868 Regulated Navigation Area; Route 24 Bridge
Construction, Sakonnet River, Rhode Island.
(a) Location. The following area is a regulated navigation area:
All navigable waters of the Sakonnet River between Tiverton and
Portsmouth, RI, from surface to bottom, within 100 yards of the Route
24 bridge over the Sakonnet River.
(b) Regulations. The general regulations contained in 33 CFR
165.10, 165.11, and 165.13 apply within the RNA, and in addition:
(1) Each person or vessel within the RNA must comply with the
directions of the Captain of the Port Sector Southeastern New England
(COTP) or the COTP's designated on-scene patrol personnel and must
comply with all applicable regulations including but not limited to the
Rules of the Road (33 CFR Subchapter E, Inland Navigational Rules);
(2) The COTP may close the RNA or establish a marked temporary
channel within the RNA at any time to protect public safety;
(3) Each vessel using the temporary channel must not exceed 47 feet
in height from the waterline, have a draft not exceeding 17 feet, and
enter the temporary channel only if it is completely clear of all other
vessel traffic; and
(4) Each vessel approaching the temporary channel and equipped with
a VHF radio must make an appropriate ``Securite'' radio call to notify
approaching vessel traffic;
(c) Effective period; enforcement. This section is effective from 8
a.m. on September 9, 2011, until 11:59 p.m. on May 1, 2013. Paragraph
(b) of this section may be enforced at any time within that period. The
COTP and designated on-scene patrol personnel will notify the public
whenever paragraph (b) is in force and whenever enforcement is lifted.
Notification may be by Broadcast Notice to Mariners, Local Notice to
Mariners, Marine Safety Information Bulletins, or by siren, radio,
flashing light, or other hailing by a Coast Guard vessel.
(d) Violations. Report violations of this regulated navigation area
to the COTP at 508-457-3211 or on VHF-Channel 16.
Dated: September 7, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-23916 Filed 9-16-11; 8:45 am]
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