2010-9800. Regulated Navigation Area; Lake Champlain Bridge Construction Zone, NY and VT

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

SUMMARY:

The Coast Guard is establishing a regulated navigation area around the construction zone of the Lake Champlain Bridge between Crown Point, New York and Chimney Point, Vermont. This temporary interim rule places speed restrictions on all vessels transiting the navigable waters of Lake Champlain in the vicinity of the bridge construction. In addition, this rule provides for the temporary suspension of all vessel traffic within the regulated navigation area during certain periods of construction. This rule is necessary to provide for the safety of life on the navigable waters within this regulated area during the construction of the Lake Champlain Bridge.

DATES:

This rule is effective in the CFR on April 28, 2010. This rule is effective with actual notice for purposes of enforcement on April 23, 2010 and is effective through December 31, 2011. Comments and related material must reach the Coast Guard on or before June 28, 2010. Requests for public meetings must be received by the Coast Guard on or before May 28, 2010.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0176 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0176 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0176 in the “Keyword” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this interim rule, call or e-mail Lieutenant Junior Grade Laura van der Pol, Waterways Management Division at Coast Guard Sector Northern New England, 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-2010-0176), 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-2010-0176” 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-2010-0176” 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. 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 revising this rule, 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 final rule without prior notice and opportunity to comment 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. It is impracticable to issue an NPRM and take public comment before April 23, 2010, when the bridge construction that necessitates creation of a regulated navigation area (RNA) is scheduled to begin. Delaying either the bridge construction, or creation of the RNA, would be contrary to the public interest because the bridge will be a public convenience and because the RNA will provide for public safety by safeguarding both mariners and construction workers during the bridge's construction. We are requesting public comment on the RNA, and if we receive public input that indicates a need to revise the RNA or the conditions it imposes, or raises any other significant public concerns, we will address those concerns prior to issuing any final rule. 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; Department of Homeland Security Delegation No. 0170.1.

Due to unanticipated structural failure of the old Lake Champlain Bridge, that bridge was demolished in December 2009 and plans were put in place to build a new bridge at that location as expediently as possible. The construction of the new Lake Champlain Bridge involves large machinery and construction vessel operations above and upon the navigable waters of Lake Champlain between Crown Point, New York and Chimney Point, Vermont. The ongoing operations are, by their nature, hazardous and pose risks both to recreational and commercial vessel traffic and the bridge construction crew. In order to mitigate the inherent risks involved in the construction, it is necessary to control vessel movement through the area.

The purpose of this rule is to ensure public and construction worker safety for the duration of the planned Lake Champlain Bridge construction, which is scheduled to begin April 23, 2010 and be completed in 2011. 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 enforcing a five (5) mile per hour speed limit and “NO WAKE” zone in 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.

Discussion of Rule

This regulated navigation area encompasses the navigable waters on Lake Champlain 300 yards to the north and south of the bridge construction zone at Crown Point, New York and Chimney Point, Vermont. The area is bounded by coordinates: 44°01′59″ N, 073°25′31″ W and 44°02′04″ N, 073°25′28″ W to the north, and 44°01′56″ N, 073°25′08″ W and 44°01′53″ N, 073°25′14″ W to the south. The area will be marked with four white and orange-striped “NO WAKE” buoys to define the start and end of the regulated area.

All vessels operating in this area must proceed with caution, and operate at no more than five knots and in a manner so as to produce no wake. In addition, the Coast Guard may close this area to all vessel traffic during any circumstance that poses an imminent threat to waterway users operating in the area. We will give as much advance notice as possible when this occurs. Normally, we expect complete closures to be preceded by at least ten days notice.

Notice will include the date and time of the closure as well as the date and time that normal vessel traffic is expected to resume. At present, we expect at least two days when the area will be completely closed, during the final phase of construction when the center bridge spans are lifted into place, but those days have not yet been scheduled.

The Captain of the Port Sector Northern New England (COTP) will cause notice of enforcement, suspension of enforcement, or closure of this regulated navigation area to be made by all appropriate means to ensure the widest distribution among the affected segments of the public. Such means of notification will 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 [phone].

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this rule to be minimal because this regulated navigation area requires vessels to reduce speed through 600 yards of Lake Champlain, therefore causing only a minimal delay to a vessel's transit. In addition, periods when the regulated navigation area is closed to all traffic are expected to be short in duration, and we expect to 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 a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: Lake Champlain Transportation Company, Champlain Bridge Marina, Van Slooten Marina, Port Henry Marina, Chipman Point Marina, Buoy 39 Marina, and the owners or operators of vessels intending to transit the portion of Lake Champlain affected by this rule between April 23, 2010 and December 31, 2011. This regulated navigation area will not have a significant economic impact on a substantial number of small entities for the following reasons: It requires vessels to reduce speed through 600 yards of Lake Champlain, therefore causing only a minimal delay to a vessel's transit. In addition, periods when the regulated navigation area is closed to all traffic are expected to be short in duration, and we expect to give advance notice of such closures.

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 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 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, 3306, 3703; 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.T01-0176 to read as follows:

§ 165.T01-0176

Regulated Navigation Area; Lake Champlain Bridge Construction, Crown Point, New York and Chimney Point, Vermont.

(a) Description of the regulated navigation area (RNA). All navigable waters on Lake Champlain 300 yards to the north and south of the Lake Champlain Bridge construction zone at Crown Point, New York and Chimney Point, Vermont. The area is bounded by coordinates 44°01′59″ N, 073°25′31″ W and 44°02′04″ N, 073°25′28″ W to the north, and 44°01′56″ N, 073°25′08″ W and 44°01′53″ N, 073°25′14″ W to the south. The area will be marked with four white and orange-striped “NO WAKE” buoys to define the start and end of the regulated area.

(b) Regulations. In addition to 33 CFR 165.10, 165.11, and 165.13, the following restrictions or conditions apply within this RNA:

(1) No vessel may operate at a speed in excess of five knots.

(2) All vessels must proceed through the area with caution and operate in such a manner as to produce no wake.

(3) Vessels must comply with all directions given to them by the Captain of the Port (COTP) Sector Northern New England 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 York State Police, New York Department of Environmental Conservation, Vermont State Police, and Vermont Fish and Game 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.

(4) During certain construction activities including installation of the bridge lift span and as deemed necessary by the COTP, all vessel movement into or within the regulated area may be prohibited.

(5) For purposes of navigational safety, the COTP or on-scene representative may authorize a deviation from this regulation.

(c) Enforcement. (1) This regulated navigation area is enforceable from April 23, 2010 through December 31, 2011.

(2) The COTP may temporarily suspend all vessel traffic through the RNA, temporarily suspend enforcement of the RNA, or suspend enforcement of the RNA at the conclusion of bridge construction. In any of these events, the COTP will give notice by all appropriate means to ensure the widest publicity among the affected segments of the public. Such means of notification may include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Notification will include the beginning and end dates and times when the traffic suspension or enforcement suspension is effective.

(3) Violations of this RNA should be reported to the COTP at [phone] or on VHF-Channel 16. Persons in violation of this RNA may be subject to civil and criminal penalties.

Dated: April 19, 2010.

J.A. Servidio,

Captain, U.S. Coast Guard, Commander, First Coast Guard District, Acting.