2011-23916. Regulated Navigation Area; Route 24 Bridge Construction, Tiverton and Portsmouth, RI

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

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: [phone].
• 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 [phone], e-mail [e-mail], or Lieutenant Junior Grade Isaac Slavitt, Coast Guard First District Waterways Management Branch, telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 81/2 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., 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 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 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

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.

2. Add § 165.T01-0868 to read as follows:

§ 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.