Coast Guard, DHS.
Temporary interim rule with request for comments.
The Coast Guard is temporarily establishing a regulated navigation area (RNA) in navigable waters near Great Bay, New Hampshire. This temporary regulation is in effect while the New Hampshire Department Start Printed Page 49844of Environmental Services (NHDES) conducts boom deployments to test the effectiveness of oil spill response strategies, and is necessary to ensure the safety of exercise participants and the maritime public from hazards associated with the boom deployment exercise. While the RNA is in effect, all vessels must transit at bare steerageway and comply with directions from the Captain of the Port.
This rule is effective from August 16, 2010 through October 31, 2010. Comments and related material must reach the Coast Guard on or before September 15, 2010.
You may submit comments identified by docket number USCG-2010-0666 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.Start Further Info
FOR FURTHER INFORMATION CONTACT:
If you have questions on this temporary interim rule, call or e-mail Lieutenant Commander David Sherry, Response Department at Coast Guard Sector Northern New England; telephone 207-741-5492, email David.M.Sherry@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.End Further Info End Preamble Start Supplemental Information
Public Participation and Request for Comments
This temporary interim rule will be in effect before the end of the comment period, but we encourage you to participate in this rulemaking by submitting comments and related materials. We may evaluate and revise this rule as necessary to address significant public comments. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.
If you submit a comment, please include the docket number for this rulemaking (USCG-2010-0666), 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 the Coast Guard can contact you with 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-2010-0666” 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 8½ 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-2010-0666” 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.
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).
We do not now plan to hold a public meeting. 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.
The Coast Guard is issuing this temporary 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. Delay would be both impracticable and contrary to the public interest in preparing for possible oil spills. The Coast Guard received less than four weeks of notice of the exact location and times of the boom deployment, and thus did not have sufficient time to issue a NPRM without delaying the effective date of this rulemaking. Delaying the effective date by first publishing a NPRM and holding a 30 day comment period would be contrary to the rule's objectives of ensuring public safety during this exercise as immediate action is needed to protect persons and vessels from the hazards associated with these boom deployments. The exercise's timing was influenced by tidal timetables and could not be changed without diminishing the effectiveness of the exercise. The Coast Guard encourages members of the public to participate in this rulemaking by making comments using one of the four methods specified under ADDRESSES.Start Printed Page 49845
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. In addition to the reasons stated above, any delay in the effective date of this regulation would be contrary to the public interest as immediate action is necessary to protect participants, waterway users, and spectators from the hazards associated with boom deployments on the water.
Basis and Purpose
Maritime response exercises and training events are frequently held within the Captain of the Port Sector Northern New England Zone. The New Hampshire Department of Environmental Services (NHDES) plans to deploy boom, a flotation device used to contain oil, in the waters of Great Bay, NH in the vicinity of Goat Island and Little Bay, New Hampshire on August 25 and 26, 2010 as well as on September 8 and 9, 2010 and October 6 and 7, 2010. These exercises will provide critical data on the effectiveness of geographic response strategies designed to protect sensitive environmental areas in the event of an oil or chemical spill in navigable waters during the maximum tide cycles. To conduct an effective test, boom must be deployed across the waterway during maximum current, a period of approximately four hours when the current averages four to five knots in planned boom deployment locations.
Based on the nature of these tests, the Coast Guard has determined that the boom deployments could pose a risk to participants or waterway users if waterway use is not restricted. This RNA is intended to protect the safety of all waterway users and exercise participants.
For each day of the exercises, waterway use will be restricted for up to an eleven hour period to allow for deployment, testing, and recovery of boom. During these times, vessels may be diverted through an alternate channel, escorted by the on-scene patrol vessels through segments of boom, or could be ordered to wait until the current has subsided and the boom removed to allow for safe passage through the area.
The purpose of this rule is to provide an effective means to ensure the safety of persons and vessels operating in the RNA during these boom deployments. As there will be hazards introduced to the waterway in testing these booming strategies, the Coast Guard determined that measures dictating the speed, route, and times when vessels may transit through the regulated area are necessary to facilitate safe vessel movement. The Coast Guard and NHDES have taken steps to minimize the impact this exercise will have on local mariners, including altering the deployment test plans to accommodate vessel transits, installing temporary aids to divert traffic around the deployment areas, and providing vessel escorts through the RNA. The RNA measures are intended to accommodate mariners, to the extent possible, while ensuring their and the exercise participants' safety.
Discussion of Rule
A chartlet depicting the boundaries of the RNA and the boom deployments for each day that the RNA is in effect will be included in the docket where indicated under ADDRESSES.
Within the regulated area, boom deployment strategies will be tested in two areas: The first area (Area One) stretches across the Oyster River from Cedar Point to Goat Island and further south to Fox Point; the second area (Area Two) is near the entrance to Little Bay just south of Durham Point and Fox Point. In order to accommodate vessel traffic, the deployment strategy for each area will be spread across two days.
On the first day, boom will be deployed between Goat Island and Fox Point for Area One and just north of rocks marked by the Rock Buoy “4” (LLNR 8585) on the western side of the Little Bay entrance for Area Two. On the second day, boom will be deployed north of Goat Island for Area One and, from a point starting 350 feet east of the Rock Buoy “4” (LLNR 8585) to a point southeast on the Fox Point peninsula for Area Two.
For the first day of testing, vessel traffic will be able to transit through the main channel (Area One) until the boom is in place for the maximum current testing; specific times are listed below. During that time, vessel traffic may be diverted to the north of Goat Island with the channel marked by temporary aids. An on-scene patrol vessel will remain east of Goat Island to inform vessels of the temporary channel and boom location.
On the second day of testing, there will be a 350 foot space to the east of the Rock Buoy “4” (LLNR 8585) to accommodate vessel traffic for the duration of the exercise. Additionally, an on-scene patrol vessel will remain in the area to advise mariners of the modified channel and boom location.
For all boom deployment days, NHDES and Coast Guard vessels will be on scene to give notice of this regulation, indicate boom locations, and to escort mariners safely through the RNA. In addition to these safety measures, all boom will be marked with 32-inch floating balls to make the ends of each boom segment more visible to mariners.
Since the boom strategy testing is located in an area subject to heavy currents, shoaling, and moderate vessel traffic, this regulation is needed to protect spectators, participants, and other waterway users from the extra hazards introduced by the boom deployment. The exercise will occur in three phases on each day: a set-up deployment phase, boom strategy testing during the period of maximum tidal current, and a recovery. Each phase of the exercise is anticipated to take place during the following times on each of the scheduled dates:
(1) Wednesday, August 25 and Thursday, August 26, 2010:
Deployment: 6 a.m.-9:30 a.m.
Maximum current: 9:30 a.m.-1:30 p.m.
Recovery: 1:30 p.m.-5 p.m.
(2) Wednesday, September 8 and Thursday, September 9, 2010:
Deployment: 6 a.m.-8:30 a.m.
Maximum current: 8:30 a.m.-12:30 p.m.
Recovery: 12:30 p.m.-4 p.m.
(3) Wednesday, October 6 and Thursday, October 7, 2010:
Deployment: 6 a.m.-7:30 a.m.
Maximum current: 7:30 a.m.-11:30 a.m.
Recovery: 11:30 a.m.-3 p.m.
All persons and vessels are required to transit the RNA at bare steerageway and in a manner so as to produce no wake for the duration of the enforcement period. The nature of the boom deployment, environmental conditions, and the fact that navigation will be confined to narrow areas in some locations makes transiting the RNA above bare steerageway a hazard to both vessel operators and exercise participants.
During the enforcement period of the regulation, vessel operators must comply with all directions given to them by the Captain of the Port or his designated representative. While boom is being deployed and recovered (times indicated above), vessels that can do so may transit through the RNA at bare steerageway unless instructed otherwise by the Captain of the Port or his designated representative.
While boom is anchored in place during maximum current testing periods, the waterway may be restricted or closed entirely. During these periods (times indicated above), mariners desiring to enter or transit through the RNA must first receive permission from the Captain of the Port or his designated representative. Mariners can request permission to transit from Captain of the Start Printed Page 49846Port Sector Northern New England by hailing the Coast Guard On-Scene Commander on VHF channel 16 or by calling (603) 436-4415.
The “designated representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The representative may be on a Coast Guard vessel, State vessel or other designated craft, or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. The On-Scene Commander will be a vessel carrying a Captain of the Port designated representative. Members of the Coast Guard and NHDES will be present to inform vessel operators of this regulation as well as to escort them through the regulated area.
The Coast Guard and NHDES will conduct extensive public outreach to notify local businesses, mariners, and agencies of the scheduled boom deployments. Advanced public notifications will also be made to the local maritime community through Local Notice to Mariners and Safety Marine Information Broadcasts.
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.
The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: The regulation will be of limited duration, vessels will still be able to navigate through the area, and slowing to bare steerageway will cause only minor delays in mariners' voyages.
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 Great Bay Marina, the Little Bay Marina, and the owners or operators of vessels intending to transit or anchor in the RNA during the enforcement period.
This regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: It is of limited duration, vessels will still be able to navigate through the area, and mariners will be given prior notice to plan for the waterway restriction. Additionally, prior to the enforcement period of this rule, the Coast Guard will issue notice of the time and location of the RNA through a Local Notice to Mariners and Safety Marine Information Broadcast.
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).
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 an 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.
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 Start Printed Page 49847of 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.
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.
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 as this rule involves establishing a temporary RNA. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.Start List of Subjects
List of Subjects in 33 CFR Part 165
- Marine safety
- Navigation (water)
- Reporting and record keeping requirements
- Security measures
- and Waterways
For the reasons discussed in the preamble, the Coast Guard amendsEnd Amendment Part Start Part
PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREASEnd Part Start Amendment Part
1. The authority citation for part 165 continues to read as follows:End Amendment Part Start Amendment Part
2. Add § 165.T01-0666 to read as follows:End Amendment Part
(a) Locations. This rule creates a temporary regulated navigation area (RNA) for all navigable waters within the following coordinates: To the east, a line drawn between the easternmost end of the Scammel Bridge (Route 4) in position 43°07′41.5″ N, 070°50′42.2″ W southwest to the prominent point of land on Fox Point east of Hen Island in position 43°07′11.5″ N, 070°51′02.6″ W; to the west, a line that crosses the mouth of the Oyster River between the charted pipeline area in position 43°07′28.2″ N, 070°52′09.1″ W south to Durham Point in position 43°07′20.2″ N, 070°52′19.5″ W; to the south, a line crossing Little Bay from where Edgerly Garrison Road meets the water in position 43°06′42.4″ N, 070°52′03.7″ W to the east in position 43°06′39.2″ N, 070°51′16.5″ W.
(b) Enforcement Period. This section will be enforced between 6 a.m. and 5 p.m. on August 25 and 26, September 8 and 9, and October 6 and 7, 2010.
(c) Regulations. (1) All vessels operating within the RNA must comply with 33 CFR 165.10, 165.11, and 165.13, and the provisions of this paragraph (c).
(2) Vessels operating within the RNA must comply with all directions given to them by the Captain of the Port Sector Northern New England (COTP) or his designated representative.
(3) All persons and vessels are required to transit the RNA at bare steerageway and in a manner so as to produce no wake.
(4) During maximum tidal current periods, mariners desiring to enter or transit through the RNA must first receive permission from the COTP or his designated representative. Maximum tidal current periods are as follows:
(i) Wednesday, August 25 and Thursday, August 26, 2010 maximum current: 9:30 a.m.-1:30 p.m.
(ii) Wednesday, September 8 and Thursday, September 9, 2010 maximum current: 8:30 a.m.-12:30 p.m.
(iii) Wednesday, October 6 and Thursday, October 7, 2010 maximum current: 7:30 a.m.-11:30 a.m.
(5) Vessel operators wishing to transit through the RNA during the times specified above can request permission to transit from the COTP by hailing the Coast Guard On-Scene Commander on VHF channel 16 or by calling (603) 436-4415.
(6) The “designated representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on his behalf. The representative may be on a Coast Guard vessel, State agency vessel 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 and New Hampshire Department of Environmental Services may be present to inform vessel operators of this regulation as well as to escort them through the area.
Dated: August 2, 2010.
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2010-20119 Filed 8-13-10; 8:45 am]
BILLING CODE 9110-04-P