E6-8075. Regulated Navigation Area: Narragansett Bay, RI and Mount Hope Bay, MA, Including the Providence River and Taunton River

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to revise some provisions of the existing Regulated Navigation Area (RNA) in the Providence River, Narragansett Bay, RI and Mount Hope Bay, MA. Specifically, the purposes of this proposed rulemaking are to: First, modify provisions in the current RNA that were originally implemented to address severe shoaling in the Providence River; second, address navigational challenges associated with the two Brightman Street bridges; and third, introduce new measures to improve navigation safety in all of Narragansett Bay and Mount Hope Bay, including the Providence and Taunton Rivers, respectively.

DATES:

Comments and related material must reach the Coast Guard on or before August 23, 2006.

ADDRESSES:

You may mail comments and related material to U.S. Coast Guard Sector Southeastern New England, Prevention Department, 20 Risho Avenue, East Providence, RI, 02914-1208. U.S. Coast Guard Sector Southeastern New England maintains the public docket for this rulemaking. Comments and documents will become part of this docket and will be available for inspection and copying at the same address between 8 a.m. and 3 p.m. Monday through Friday, except federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mr. Edward G. LeBlanc at U.S. Coast Guard Sector Southeastern New England, 401-435-2351.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-06-052), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

Public Meeting

We do not plan to hold a public meeting but you may submit a request for a meeting by writing to U.S. Coast Guard Sector Southeastern New England at the address under ADDRESSES explaining why one would be beneficial. If we determine that a public meeting would aid the Coast Guard in determining what type of rulemaking (if any) is appropriate, we will hold one at a time and place announced by a later notice in the Federal Register.

Background and Purpose

On May 1, 1994, the Coast Guard established a Regulated Navigation Area (RNA) in the Providence River, Providence, Rhode Island, described at 33 CFR 165.122 (59 FR 18487, April 19, 1994). It was designed to protect the maritime community from hazards to navigation resulting from the extreme shoaling that occurred in the northern section of the Providence River Channel.

Generally, the current RNA imposes certain navigation restrictions in various segments of the Providence River including, among other requirements, a maximum draft of 35 feet for most vessels, one-way vessel traffic, and a requirement that vessels over 65 feet in length make periodic SECURITE calls via VHF radio. In September 2005 the U.S. Army Corps of Engineers (“USACE”) completed a major maintenance dredging of the Providence River to remove most shoaling and restore the channel to a depth of 40 feet at Mean Lower Low Water (MLLW), and a minimum channel width of 600 feet. (The USACE “Results of Survey” dated September 16, 2005, is available for review in the docket, CGD01-06-052.)

The restoration of the Providence River Channel to the above described dimensions should permit sufficient depth and width for most commercial and recreational vessels to navigate safely within the channel. Consequently, because the primary conditions that warranted the RNA no longer exist, the Coast Guard is considering making modifications to it.

Construction of a new Brightman Street bridge (“The New Brightman Street Bridge”) approximately 1100 feet north of the existing Brightman Street Bridge (“The Old Brightman Street Bridge”) presents navigational challenges, particularly for larger self-propelled tank vessels. The opening of the Old Brightman Street Bridge is only 98 feet while the opening of the New Brightman Street Bridge is 200 feet. There is an approximate centerline offset of 100 feet between the two bridges.

This configuration requires larger commercial vessels to transit through one opening, stop, be pushed transversely (sideways) by tugs for approximately 100 feet to align with the next bridge opening, and then proceed forward. The Coast Guard proposes to address the challenges in transiting between the bridges by codifying some navigational safety measures already practiced by local marine pilots. The Coast Guard elaborates on those navigational challenges in the Discussion of Proposed Rule section below.

On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59). Section 1948 of that law prohibits the expenditure of Federal funds for the demolition of the Old Brightman Street Bridge. Specifically, that Section states: “Notwithstanding any Federal law, regulation, or policy to the contrary, no Federal funds shall be obligated or expended for the demolition of the existing Brightman Street Bridge connecting Fall River and Somerset, Massachusetts, and the existing Brightman Street Bridge shall be maintained for pedestrian and bicycle access, and as an emergency service route.”

The unique maneuvers required to navigate safely between these two bridges concern the Coast Guard and consequently, certain measures to mitigate those navigation challenges are suggested in this proposed rule. The safety measures suggested are currently being practiced voluntarily by the maritime community. Given that the configuration of the two bridges now appears to be the status quo, the Coast Guard proposes that modifying the existing RNA in the Providence River, Narragansett Bay, RI and Mount Hope Bay, MA, is an appropriate method to address the respective navigation safety issues.

Concurrently, the Coast Guard proposes to implement certain navigation safety measures applicable to the waterways that encompass Narragansett Bay and Mount Hope Bays (“The Bays”) in their entirety, including the Providence River and Taunton River.

On September 7, 2004 and September 8, 2004, the Coast Guard sponsored a Ports and Waterways Safety Assessment (PAWSA) of Narragansett Bay, which was conducted by a cross-section of waterways users and stakeholders. The report produced by the PAWSA participants identified several issues and areas within the Bays where navigational safety was of particular concern. (A copy of the PAWSA report is available in the docket, CGD01-06-052.) Although the Coast Guard has taken several non-regulatory actions to improve navigational safety, such as public outreach, education and improved aids to navigation, the Coast Guard is considering additional navigational safety regulations within the Bays.

On November 21, 2005, the Coast Guard published a notice requesting public comments on “Navigation and Waterways Management Improvements, Providence River Regulated Navigation Area; Narragansett Bay, Rhode Island and Mount Hope Bay, MA” (See 70 FR 70052). The Coast Guard invited comments on several specific questions regarding navigational safety within the Bays, and solicited any other comments regarding navigational safety concerns and potential impacts of any new navigational safety measures. Three comments were submitted.

Two of the three comments addressed navigational concerns related to the waterway configuration resulting from the proximity of the Old Brightman Street Bridge to the New Brightman Street Bridge that span the Taunton River between Somerset and Fall River, Massachusetts. Specifically, there is only 1100 feet between the bridges, the opening of the Old Brightman Street Bridge is only 98 feet while the opening of the New Brightman Street Bridge is 200 feet, and the openings of the two bridges are not aligned with each other. As noted previously, this configuration requires a vessel to transit through one opening, stop, be pushed transversely (sideways) by tugs for approximately 100 feet to align with the next bridge opening, and then proceed forward. Local marine pilots, working with vessel operators, have devised a method of transiting the two bridges that involves the use of a marine pilot, three tugs (in most cases), and navigating only within certain weather parameters. The Coast Guard proposes to codify those voluntary practices in this NPRM.

The first two comments are more aptly addressed via the mechanisms contemplated by 33 CFR part 116, “Alterations of Unreasonably Obstructive Bridges.” That part describes the procedures by which the Coast Guard determines a bridge to be an unreasonable obstruction to navigation. Consequently, the Commander, First Guard District (dpb) forwarded a letter on April 3, 2006, to Commandant (G-PWB), Coast Guard Headquarters, Washington, DC, to begin the 33 CFR part 116 process regarding the Old Brightman Street Bridge.

The third comment pertained specifically to the current RNA described at 33 CFR 165.122 and recommended:

• A reduction in several voice reporting requirements via VHF radio in Narragansett Bay and the Providence River;
• Removal of the one-way traffic restriction in the Providence River;
• Addition of a voice reporting requirement via VHF radio in Mount Hope Bay;
• Addition of an under-keel clearance requirement for deep draft vessels in both Narragansett Bay and Mount Hope Bay.

The recently-completed major dredging project by the USACE has reduced the need for voice reporting requirements in Narragansett Bay and the Providence River, and obviated the need for one-way traffic restrictions in the river. Consequently, the recommendations made with respect to a reduction in several voice reporting requirements via VHF radio in Narragansett Bay and the Providence River and a removal of the one-way traffic restriction in the Providence River, as described above, have already been incorporated and addressed in this proposed rule. Given the type and frequency of marine traffic in Mount Hope Bay and the Taunton River, combined with the location of three bridges in close proximity to each other (the Braga Bridge, the Old Brightman Street bridge, and the New Brightman Street Bridge (under construction)), the Coast Guard believes that voice reporting requirements are prudent and should enhance navigation safety, and those reporting requirements are also included in this proposed rule.

The recommendation for an under-keel clearance requirement was considered, but is not included as part of the proposed rule in this NPRM. The under-keel clearance is subject to many variables, such as wave height, squat, accuracy of tidal predictions, water density, etc., and is difficult, if not impossible, to enforce. Rather, we propose to revise the existing maximum draft restriction for the Providence River as described below in our proposed regulatory text.

Discussion of Proposed Rule

The proposed modifications to the current RNA at 33 CFR 165.122 would:

• Remove certain navigation restrictions and minimum visibility requirements in the Providence River, especially for vessels with drafts of 35 feet or greater;
• Remove the one-way-traffic restriction for vessels over 65 feet in length that currently exists in certain areas of the Providence River;
• Reduce the number of required Safety Signal (SECURITE) calls while transiting Narragansett Bay and the Providence River;
• Require a SECURITE call for certain vessels transiting Mount Hope Bay and the Taunton River;
• Define maximum draft allowances for vessels transiting within the RNA;
• Define certain weather parameters, and require a federally licensed pilot and assist tugs, for commercial vessels transiting through the Old and New Brightman Street bridges.

This proposed rule was prompted by the completion of a major dredging project in the Providence River. Navigation safety measures implemented to address the shoaling in that river are no longer required. Based upon the 2004 PAWSA report, however, the public response to the Coast Guard November 21, 2005 notice requesting comments (See 70 FR 70052), and recent Federal legislation that will result in both the Old and New Brightman Street bridges being retained, (Pub. L. 109-59, described above) there is a need for certain navigation safety measures to be implemented in order to better protect people, property, waterways users, the environment, and the economy from the adverse affects of a marine accident or incident.

Vessels or persons violating this section would be subject to the civil or criminal penalties set forth in 33 U.S.C. 1232.

Regulatory Evaluation

This proposed 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this proposed rule would not be significant as it removes some previously imposed and more restrictive navigation safety measures, and modifies already-existing voice reporting requirements in the affected waterways. Navigating within certain weather parameters and requiring federally licensed pilots and assist tugs for commercial vessels transiting the Old and New Brightman Street bridges are already standard practices and will not be an additional economic burden. Should this proposed rule become final, it would be entered into the local notice to mariners, and maritime advisories will be broadcast.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels 65 feet in length or greater transiting the waterways of Narragansett Bay and Mount Hope Bay, including the Providence and Taunton rivers, respectively.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule only modifies current regulations and/or codifies current navigation practices. It does not impose new requirements which would affect vessels' schedules or their ability to transit the RNA, nor does it require the purchase of any new equipment or the hiring of any additional crew.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES above) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. 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 Mr. Edward G. LeBlanc of U.S. Coast Guard Sector Southeastern New England at 401-435-2351. 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 proposed rule would call 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 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This proposed rule would not effect 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it would change a Regulated Navigation Area. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review.

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 proposes to amend 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Revise § 165.122 to read as follows:

§ 165.122

Regulated Navigation Area: Narragansett Bay, RI and Mount Hope Bay, MA, Including the Providence River and Taunton River.

(a) Description of the regulated navigation area. The Regulated Navigation Area (RNA) encompasses all of the navigable waters of Narragansett Bay and Mount Hope Bay north of the COLREGS demarcation line defined in 33 CFR 80.155, and all of the navigable waters of the Providence River from Conimicut Point to the Providence hurricane barrier, and the Taunton River from Brayton Point northeast to Breeds Cove north of the New Brightman Street Bridge.

(b) Regulations. (1) The following restrictions apply:

(i) No vessel may transit the Providence River (the entire channel from Sandy Point to Fox Point Reach):

(A) With a draft greater than 37 feet, 6 inches (37′6″) when water depth is below mean low water.

(B) With a draft greater than 41 feet (41′) when water depth is below mean high water.

(ii) For the purposes of this section, water depth for the Providence River is the water depth at the time a vessel enters the river as recorded at the National Oceanic and Atmospheric Administration's (NOAA's) Physical Ocean Real Time System (PORTS) depth recording device located at Conimicut Point. If this device is not operating properly or its information cannot be obtained, water depth will be determined using NOAA-published tide tables.

(iii) No vessel may transit the Mount Hope Bay/Taunton River channel (the entire channel from Sandy Point to Breeds Cove north of the New Brightman Street Bridge):

(A) With a draft greater than 31 feet, 6 inches (32′6″) when water depth is below mean low water.

(B) With a draft greater than 34 feet, 6 inches (34′ 6″) when water depth is below mean high water.

(iv) For the purposes of this section, water depth for the Taunton River is the water depth at the time a vessel enters the river as recorded at the NOAA's Physical Ocean Real Time System (PORTS) depth recording device located at Borden Flats, Fall River. If this device is not operating properly or its information cannot be obtained, water depth will be determined using NOAA-published tide tables.

(v) No vessel may transit the Quonset Point/Davisville Channel (the entire channel from Sandy Point to Davisville):

(A) With a draft greater than 28 feet, 6 inches (28′6″) when water depth is below mean low water.

(B) With a draft greater than 30 feet (30′) when water depth is below mean high water.

(vi) For the purposes of this section, water depth for the Quonset Point/Davisville channel is the water depth at the time a vessel enters the channel as recorded at the NOAA's Physical Ocean Real Time System (PORTS) depth recording device located at Quonset Point. If this device is not operating properly or its information cannot be obtained, water depth will be determined using NOAA-published tide tables.

(2) All commercial vessels greater than 200 gross tons must:

(i) Have at least 1 mile of visibility to transit the Providence River between Conimicut Light (LLNR 18305) and Channel Light 42 (LLNR 18580, Fuller Rock Light); and

(ii) Transit through the Old and New Brightman Street bridges only:

(A) During daylight;

(B) On a flood tide when outbound;

(C) When a federally licensed pilot is aboard;

(D) When winds are no greater than 15 knots; and

(E) Accompanied by at least three assist tugs, each of sufficient capability to push, tow, or stop the commercial vessel to avoid grounding, collision, or allision, except that:

(i) Only two assist tugs are required when the commercial vessel is equipped with a properly operating bow thruster of at least 1000 horsepower.

(ii) Only one assist tug is required when a barge is being pushed by a primary towing vessel. For the purposes of this regulation, “primary towing vessel” is as defined in 33 CFR 157.03.

(3) Vessels over 65 feet in length inbound for berths in the Providence River, are required to make Safety Signal (SECURITE) calls on both VHF channels 13 and 16 at the following geographic locations: Pilot Boarding Area, abeam of Castle Hill, abeam of Sandy Point, abeam of Conimicut Point Light (LLNR 18305), abeam of Sabin Point and upon mooring.

(4) Vessels over 65 feet in length inbound for berths in Mount Hope Bay or in the Taunton River, are required to make Safety Signal (SECURITE) calls on both VHF channels 13 and 16 at the Mount Hope Bay Junction Lighted Gong Buoy “MH” (LLNR 18790).

(5) Vessels over 65 feet in length outbound for sea down the Providence River Channel shall make SECURITE calls on VHF channels 13 and 16 at the following geographic locations:

(i) One-half hour prior to departure from the berth;

(ii) At departure from the berth;

(iii) Abeam of Sabin Point;

(iv) Abeam of Gaspee Point; and

(v) Abeam of Conimicut Light (LLNR 18305).

(6) Vessels over 65 feet in length outbound for sea down the Taunton River or Mount Hope Bay are required to make SECURITE calls on VHF channels 13 and 16 at the following geographic locations:

(i) One-half hour prior to departure from the berth;

(ii) At departure from the berth; and

(iii) At the Mount Hope Bay Junction Lighted Gong Buoy “MH” (LLNR 18790).

(7) Vessels 65 feet and under in length and all recreational vessels when meeting deep draft commercial vessel traffic in all locations within this RNA shall keep out of the way of the oncoming deep draft commercial vessel.

(8) The Captain of the Port, Southeastern New England, may authorize a deviation from these regulations.

(c) Enforcement. As stated in § 165.13(b), no person may cause or authorize the operation of a vessel in an RNA contrary to the regulations in this part. Violations of regulations in this section should be reported to the Captain of the Port, Southeastern New England, at 508-457-3211. Persons in violation of regulations in this section will be subject to civil or criminal penalties set forth in 33 U.S.C. 1232.

Dated: May 16, 2006.

David P. Pekoske,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.