[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Rules and Regulations]
[Pages 38923-38926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16263]
[[Page 38923]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2010-0220]
RIN 1625-AA11
Regulated Navigation Area: Niantic Railroad Bridge Construction,
Niantic, CT
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments; notice of
meeting.
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SUMMARY: The United States Coast Guard is establishing a regulated
navigation area (RNA) on the navigable waters of the Niantic River
Channel under and surrounding the Amtrak Railroad Bridge that crosses
Niantic Bay in the Town of Niantic, Connecticut. This temporary interim
rule allows the Coast Guard to suspend all vessel traffic within the
RNA for construction operations, both planned and unforeseen, 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 the construction of the Niantic Railroad Bridge.
DATES: This rule is effective in the CFR from July 7, 2010, through
April 20, 2013, and with actual notice for purposes of enforcement from
June 20, 2010, through April 20, 2013. Public comments should be
submitted by August 6, 2010, but will be accepted and reviewed by the
Coast Guard through April 20, 2013.
ADDRESSES: You may submit comments identified by docket number USCG-
2010-0220 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(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-2010-0220 and are available online by
going to http://www.regulations.gov, inserting USCG-2010-0220 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 LT Judson Coleman, Prevention Department, Coast
Guard Sector Long Island Sound, telephone 203-468-4596, e-mail
[email protected]. If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
As this 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. Alternatively, if the
bridge construction necessitating the interim rule is completed before
April 20, 2013, and we receive no public comments that indicate a
substantive need to revise the rule, we may allow it to expire on that
date without further regulatory action.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2010-0220), 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 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-2010-0220'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit comments by mail or hand delivery, submit them in
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change this rule
based on your comments.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2010-0220'' 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).
[[Page 38924]]
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 two locally
announced public meetings, on March 22 and April 15, 2010, where
waterway closures and restrictions were discussed, and we anticipate
holding one or more additional informational meetings, with opportunity
for public questions or comments, during the bridge construction. We
will provide written summaries of any such meetings in the docket.
Regulatory Information
The Coast Guard is issuing this interim rule without prior 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 because it is
impracticable and contrary to the public interest to do so. The need
for waterway closures was not brought to the attention of the Coast
Guard until March 11, 2010. This left insufficient time to issue an
NPRM and solicit public comments prior to issuing the interim rule,
which is necessary to protect the safety of both the construction crew
and the waterway users operating in the vicinity of the bridge
construction zone. Further, it would be impracticable and contrary to
the public interest to delay or cancel this American Recovery and
Reinvestment Act (ARRA) construction project, because to do so would
delay necessary repairs thus prolonging the time that construction
barges and equipment would be in this location. Additionally, the
dynamic nature of the construction process and multitude of
construction vessels necessitates that all mariners navigate at a safe
speed within the RNA in accordance with Rule 6 of the Inland Navigation
Rules, as the barge and construction equipment configuration may change
on a daily basis. Further, the Coast Guard finds that issuance of an
NPRM followed by a public comment period is unnecessary, because
locally announced public maritime stakeholder meetings were held on
March 22 and April 15, 2010, with Coast Guard Sector Long Island Sound,
Amtrak, First Coast Guard District Bridge Branch, local marinas, town
police, and small business owners in attendance. The construction plan
was presented by Amtrak, the bridge owner; public comments and concerns
were identified and many have been incorporated into this regulation.
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 and Department
of Homeland Security Delegation No. 0170.1.
The purpose of this rule is to ensure construction worker and
public safety for the duration of the Niantic Railroad Bridge
construction from June 20, 2010 through April 20, 2013.
Discussion of Rule
This RNA encompasses the navigable waters of the Federal channel on
the Niantic River in Niantic, Connecticut, within the limits defined in
the regulation.
During demolition of the existing Niantic Railroad Bridge and
construction of its replacement, the Coast Guard may close the RNA to
all unauthorized vessel traffic during any circumstance, planned or
unforeseen, that poses an imminent threat to waterway users operating
in the area. Complete waterway closure will be made with as much
advance notice as possible and, when closure is planned, at least ten
days in advance.
The Coast Guard has discussed this project at length with Amtrak
and their contractor Cianbro/Middlesex to identify if the project can
be completed without channel closures and, if possible, what impact
that would have on the project timeline. Through these discussions, it
became clear that while the majority of construction activities during
the span of this project would not require waterway closures, there are
certain tasks that can only be completed in the channel and will
require closing the waterway. Amtrak issued a letter on May 21, 2010
detailing the required channel work phases that will need waterway
closures.
There currently planned and proposed channel closure periods are
outlined below:
The currently planned closure period will be from June 20 through
October 15, 2010, on Sunday and Monday nights from 10 p.m. to 4:30
a.m., with two exceptions: (1) The channel will remain open during the
four days on either side of the full moon to accommodate striped bass
charters that depart during nighttime hours, and (2) there will be a
scheduled opening between 1:30 to 2 a.m., from August 1 to October 15
to accommodate nighttime departures for offshore tuna fishing.
Other proposed closure periods will be from October 16 through
December 15, 2010, on Sunday through Thursday nights from 9 p.m. to 5
a.m.; from December 16, 2010 through March 15, 2011 on Sunday through
Thursday from 9 a.m. to 5 p.m. and 9 p.m. to 5 a.m.; and from March 16
through May 15, 2011, on Sunday through Wednesday from 10 p.m. to 4:30
a.m.
Closure periods listed above will be made available to Amtrak and
their contractor with the understanding that the construction schedule
as well as weather and tide conditions may not allow them to use all
closures. On a case-by-case basis, depending on the construction
schedule, Amtrak may request a waterway closure from June 20 through
October 15, 2010 on Wednesday morning from 12:30 a.m. to 4:30 a.m.
Amtrak will notify the Coast Guard of planned activities as soon as
possible; preferably four weeks in advance of any event. The Coast
Guard will notify the maritime community of those Wednesday dates with
a waterway closure via Marine Information Broadcasts, Coast Guard Local
Notice to Mariners and Marine Safety Information Bulletins. Closure
periods similar to those outlined above should be expected throughout
the duration of this rule.
Additionally, during the winter of 2011 and into the early spring
of 2012 there will be certain tasks (i.e. picking and setting of the
heel girders and float-in of the new bridge) that will require 12 to 24
hour closures as well as a seven day closure to float-in and install
the new bridge. Once these closure periods are identified they will
also be published in the Federal Register as a notice of enforcement.
In the event of an emergency all construction equipment will be
[[Page 38925]]
removed from the channel to allow for emergency vessels to pass (i.e.,
Fire Rescue Boat, Marine Police Boat, or Environmental Response Boat).
The implementation of this RNA does not negate the fact that the
Inland Rules of the Road as found in 33 CFR part 84 must be strictly
adhered to. Mariners are strongly urged to monitor VHF channel 13 when
transiting the area and to communicate with fellow mariners to
facilitate movement and/or passing arrangements within the channel.
Any violation of the RNA described herein is punishable by, among
others, 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.
The Captain of the Port Sector Long Island Sound (COTP) will cause
notice of enforcement, suspension of enforcement, or closure of this
RNA to be made by all appropriate means to effect the widest
distribution among the affected segments of the public. Such means of
notification will include, but are not limited to, Notice of
Enforcement published in the Federal Register, Broadcast Notice to
Mariners, and Local Notice to Mariners.
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.
This regulation may have some impact on the public, but the
potential impact will be minimized for the following reasons: Vessels
are currently scheduled to be excluded from the RNA only at night on
Sunday and Monday, not including full moon tide weeks for night fishing
or impacting busy weekend boating times, and vessels will be able to
operate on all other portions of the Niantic River not covered by the
RNA. Marine radio broadcasts informing the public of any closures made
by the RNA will be made before, during, and at the conclusion of the
RNA closure enforcement periods.
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: Owners or operators of marinas, charter fishing
vessels and commercial fishing vessels who intend to transit in those
portions of the Niantic River between June 20, 2010 and April 20, 2013.
Although the RNA will apply to the entire width of the river, under
and surrounding the Niantic Railroad Bridge, traffic will be allowed to
pass through the area with the permission of the COTP. Before the
effective period, we will issue maritime advisories widely available to
users of the river.''
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
[[Page 38926]]
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.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR Part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for Part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. Add Sec. 165.t01-0220 to read as follows:
Sec. 165.t01-0220 Regulated Navigation Area: Niantic Railroad Bridge
Construction, Niantic, Connecticut
(a) Location. The following area is a regulated navigation area:
All navigable waters of the Federal channel on the Niantic River in
Niantic, CT, from surface to bottom, bounded to the north by the
Highway 156/Main Street Bridge and to the south beginning at a point on
land located at 41[deg]19[min]26.000[sec] N, 72[deg]10[min]51.000[sec]
W, then running southeast to position 41[deg]19[min]16.158[sec] N,
72[deg]10[min]45.519[sec] W (Niantic River Channel Buoy 3 (LLNR 22310))
and 41[deg]19[min]15.285[sec] N, 72[deg]10[min]44.867[sec] W (Niantic
River Channel Buoy 4 (LLNR 22315)), then running east to a point on
land located at 41[deg]19[min]14.000[sec] N, 72[deg]10[min]38.000[sec]
W.
(b) Regulations. (1) The general regulations contained in 33 CFR
165.10, 165.11, and 165.13 apply.
(2) In accordance with the general regulations, entry into or
movement within this zone, during periods of enforcement, is prohibited
unless authorized by the Captain of the Port, Long Island Sound (COTP).
(3) All persons and vessels must comply with the COTP or the COTP's
designated on-scene Coast Guard patrol personnel.
(4) Upon being hailed by a Coast Guard vessel by siren, radio,
flashing light or other means, the operator of the vessel must proceed
as directed.
(5) Persons and vessels may request permission to enter the zone
during periods of enforcement on VHF-16 or via phone at 203-468-4401.
(6) Rules of the Road (33 CFR part 84, Inland Navigational Rules)
remain in effect and must be strictly adhered to at all times.
(c) Enforcement Period. (1) This regulated navigation area is
enforceable 24 hours a day from June 20, 2010 until April 20, 2013.
(2) The COTP may temporarily suspend enforcement of the RNA. If
enforcement is suspended, the COTP will cause a notice of the
suspension of enforcement by all appropriate means to effect 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. Such notification will include
the date and time that enforcement is suspended as well as the date and
time that enforcement will resume.
(3) The COTP may temporarily suspend all traffic through the RNA
for any situation that would pose imminent hazard to life on the
navigable waters. In the event of a complete waterway closure, the COTP
will make advance notice of the closure by all means available to
effect the widest public distribution including, but are not limited
to, Broadcast Notice to Mariners and Local Notice to Mariners. Such
notification will include the date and time of the closure as well as
the date and time that normal vessel traffic can resume.
(4) Violations of this regulated navigation area should be reported
to the Captain of the Port Sector Long Island Sound, at 203-468-4401 or
on VHF-Channel 16. Persons in violation of this regulated navigation
area may be subject to civil and/or criminal penalties.
Dated: June 10, 2010.
J.A. Servidio,
Captain, U.S. Coast Guard, Acting, Commander, First Coast Guard
District.
[FR Doc. 2010-16263 Filed 7-6-10; 8:45 am]
BILLING CODE 9110-04-P