E8-12175. Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; Frontier Sentinel 2008

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing temporary moving safety zones around Coast Guard and Navy vessels as well as five fixed safety zones off to the west and south of Gerrish Island, south of Kittery Point, east of Jaffrey Point, and east of Odiornes Point during the Frontier Sentinel Exercise on the Piscataqua River, a homeland security exercise that will involve underwater equipment and operations. This rule will establish multiple fixed and moving safety zones that will be enforced from 8 a.m. to 5 p.m. daily on June 9, 2008 through June 12, 2008 from the General Sullivan Bridge, U.S. Route 16 to one mile seaward of the Red “2KR” buoy at the mouth of the river. This action is necessary to protect federal, state, and local assets (including unmanned underwater vehicles (UUV)) and others in the maritime community from the safety hazards that may arise from this large scale exercise.

DATES:

This rule is effective from 8 a.m. on June 9, 2008 through 5 p.m. on June 12, 2008.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0341 and are available online at www.regulations.gov. This material is also available for inspection or copying at two locations: 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 and at U.S. Coast Guard Sector Northern New England, 259 High Street, South Portland, ME 04106 between the hours of 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

LTJG Kevin Miller at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. In conjunction with preparations for this exercise, the U.S. Navy and Coast Guard were not able to finalize the exercise scope, location, and timetables until April 23, 2008. Therefore, publishing of a proposed rule was not feasible. Nonetheless, the temporary establishment of the safety zones established by this rule is in the public interest.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Immediately implementing this rule promotes the public interest by protecting the maritime public and agency participants on the Piscataqua River during Frontier Sentinel 2008.

Background and Purpose

This rule establishes five fixed safety zones as well as moving safety zones for the duration of the exercise. The rule is necessary to protect the federal, state, local, and public entities on the Piscataqua River during Frontier Sentinel 2008, a large scale mine countermeasures exercise. The exercise area will encompass all waters of the Piscataqua River from the General Sullivan Bridge, U.S. Route 16, seaward to one mile past the Red “2KR” buoy at the mouth of the river. Within this exercise area, there will be numerous federal, state, and local vessels participating with divers and unmanned underwater vehicles (UUV). The UUV's will be monitored by Coast Guard, Navy, or state patrol vessels, designated with the blue and white Alpha (Diver Down) Flag.

Discussion of Rule

The five fixed safety zones will be established where continuous diving operations will take place during the hours of the exercise. These fixed safety zones will be located near Gerrish Island, Kittery Point, Jaffrey Point, and Odiornes Point. The five temporary fixed safety zones will be enforced between the hours of 8 a.m. to 5 p.m. on June 9, 2008 through June 12, 2008:

All waters on the Piscataqua River enclosed by a box starting from a point located south of Kittery Point at latitude 43°04′41″ N, longitude 70°43′03″ W; thence to latitude 43°04′36″ N, longitude 70°43′02″ W; thence to latitude 43°04′40″ N, longitude 70°42′34″ W; thence to latitude 43°04′45″ N, longitude 70°42′36″ W; thence to the point of beginning.

All waters on the Piscataqua River enclosed by a box starting from a point located east of Jaffrey Point at latitude 43°03′48″ N, longitude 70°42′36″ W; thence to latitude 43°03′15″ N, longitude 70°42′39″ W; thence to latitude 43°03′15″ N, longitude 70°42′21″ W; thence to latitude 43°03′48″ N, longitude 70°42′28″ W; thence to the point of beginning.

All waters on the Piscataqua River enclosed by a box starting from a point located west of Gerrish Island at latitude 43°04′32″ N, longitude 70°42′09″ W; thence to latitude 43°04′13″ N, longitude 70°42′05″ W; thence to latitude 43°03′55″ N, longitude 70°42′04″ W; thence to latitude 43°03′59″ N, longitude 70°41′53″ W; thence to latitude 43°04′15″ N, longitude 70°41′56″ W; thence to the point of beginning.

All waters on the Piscataqua River enclosed by a box starting from a point located east of Odiornes Point at latitude 43°03′05″ N, longitude 70°42′45″ W; thence to latitude 43°02′32″ N, longitude 70°42′33″ W; thence to latitude 43°02′40″ N, longitude 70°42′34″ W; thence to latitude 43°02′40″ N, longitude 70°42′05″ W; thence to latitude 43°02′53″ N, longitude 70°42′19″ W; thence to the point of beginning.

All waters on the Piscataqua River enclosed by a box starting from a point located south of Gerrish Island at latitude 43°03′21″ N, longitude 70°41′24″ W; thence to latitude 43°02′46″ N, longitude 70°41′13″ W; thence to latitude 43°02′46″ N, longitude 70°39′27″ W; thence to latitude 43°03′32″ N, longitude 70°40′10″ W; thence to latitude 43°03′27″ N, longitude 70°40′28″ W; thence to the point of beginning.

All coordinates for these safety zones are North American Datum 1983 (NAD 83).

The temporary moving safety zones will be established as necessary to encompass Coast Guard, Navy, and state patrol vessels, with a radius of 100 yards, to ensure the safety of the maritime public from the hazards associated with the UUV operations. There may be as many as five simultaneous moving safety zones throughout the operation area. The establishment and enforcement of these zones will be announced via a Broadcast Notice to Mariners during the exercise timeframe. These vessels and their associated UUV's will be operating in the Piscataqua River from the General Sullivan, U.S. Route 16 bridge, seaward to the mouth of the river near one mile past the Red “2KR” Buoy. The vessels will be displaying an Alpha (Diver Down) Flag.

Mariners wishing to transit through the moving safety zones must contact the Captain of the Port (COTP) or the COTP's designated representative at telephone number 207-767-0303 or contact the designated Patrol Commander on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz) to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions provided by the COTP or the COTP's designated representative.

Regulatory Evaluation

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. The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: The safety zone will be of limited duration. The event is designed to avoid, as much as practicable, deep draft, fishing, and recreational boating traffic routes. Vessels may be authorized to transit the zone with permission of the COTP. Additionally, maritime advisories will be broadcast during the duration of the effective period. Extensive outreach has been conducted through the Area Maritime Security Committee, the Area Committee, and the Maine and New Hampshire Port Safety Forum, as well as focused outreach to key stakeholders.

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 may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in the safety zone during this exercise. However, this rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area, the ample space available for vessels to maneuver and navigate around the zone, and advance notifications will be made to the local community by marine information broadcasts.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Kevin Miller at [phone], Sector Northern New England, Waterways Management Division.

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 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will 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 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 Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 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, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures, and 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. 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add temporary § 165.T01-0341 to read as follows:

§ 165.T01-0341

Safety Zone; Piscataqua River, Portsmouth, NH, and Kittery, ME; Frontier Sentinel 2008.

(a) Location. The following areas are fixed safety zones:

(1) All waters on the Piscataqua River enclosed by a box starting from a point located south of Kittery Point at latitude 43°04′41″ N, longitude 70°43′03″ W; thence to latitude 43°04′36″ N, longitude 70°43′02″ W; thence to latitude 43°04′40″ N, longitude 70°42′34″ W; thence to latitude 43°04′45″ N, longitude 70°42′36″ W; thence to the point of beginning.

(2) All waters on the Piscataqua River enclosed by a box starting from a point located east of Jaffrey Point at latitude 43°03′48″ N, longitude 70°42′36″ W; thence to latitude 43°03′15″ N, longitude 70°42′39″ W; thence to latitude 43°03′15″ N, longitude 70°42′21″ W; thence to latitude 43°03′48″ N, longitude 70°42′28″ W; thence to the point of beginning.

(3) All waters on the Piscataqua River enclosed by a box starting from a point located west of Gerrish Island at latitude 43°04′32″ N, longitude 70°42′09″ W; thence to latitude 43°04′13″ N, longitude 70°42′05″ W; thence to latitude 43°03′55″ N, longitude 70°42′04″ W; thence to latitude 43°03′59″ N, longitude 70°41′53″ W; thence to latitude 43°04′15″ N, longitude 70°41′56″ W; thence to the point of beginning.

(4) All waters on the Piscataqua River enclosed by a box starting from a point located east of Odiornes Point at latitude 43°03′05″ N, longitude 70°42′45″ W; thence to latitude 43°02′32″ N, longitude 70°42′33″ W; thence to latitude 43°02′40″ N, longitude 70°42′34″ W; thence to latitude 43°02′40″ N, longitude 70°42′05″ W; thence to latitude 43°02′53″ N, longitude 70°42′19″ W; thence to the point of beginning.

(5) All waters on the Piscataqua River enclosed by a box starting from a point located south of Gerrish Island at latitude 43°03′21″ N, longitude 70°41′24″ W; thence to latitude 43°02′46″ N, longitude 70°41′13″ W; thence to latitude 43°02′46″ N, longitude 70°39′27″ W; thence to latitude 43°03′32″ N, longitude 70°40′10″ W; thence to latitude 43°03′27″ N, longitude 70°40′28″ W; thence to the point of beginning.

(6) All vessels and swimmers are restricted from entering these areas.

(b) Location. The following areas are moving safety zones:

(1) All waters on the Piscataqua River in a moving 100 yard radius surrounding United States Navy, Coast Guard, and state vessels displaying an Alpha (Diver Down) Flag from the General Sullivan Bridge, U.S. Route 16, to one mile past the Red “2KR” Buoy.

(2) All vessels and swimmers are restricted from entering these areas.

(c) Effective Date. This rule is effective from 8 a.m. on June 9, 2008 through 5 p.m. June 12, 2008, and will be enforced from 8 a.m. to 5 p.m. daily during that period.

(d) Definitions.

(1) Designated Representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port (COTP).

(2) [Reserved]

(e) Regulations.

(1) In accordance with the general regulations in 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the COTP, Sector Northern New England or the COTP's designated representative.

(2) Vessel operators desiring to enter or operate within the safety zones may contact the COTP or the COTP's designated representative at telephone number 207-767-0303 or designated representative on VHF Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz)to seek permission to do so. If permission is granted, all persons and vessels must comply with the instructions provided by the COTP or the COTP's designated representative.

Dated: May 20, 2008.

J.E. Rendon,

Captain, U.S. Coast Guard, COTP Northern New England.