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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0623]

RIN 1625-AA11

Regulated Navigation Area; Thames River Degaussing Range Replacement Operations; New London, CT

AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Coast Guard proposes to establish a regulated navigation area (RNA) on the navigable waters of the Thames River in New London Harbor, New London, CT. The proposed RNA would establish speed and wake restrictions as well as allow the Coast Guard to prohibit all vessel traffic through the RNA during degaussing range replacement operations, both planned and unforeseen, that could pose an imminent hazard to persons and vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during the replacement of the degaussing range and its supporting system.
DATES: Comments and related material must be received by the Coast Guard on or before October 5, 2012.

Requests for public meetings must be received by the Coast Guard on or before September 17, 2012.

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

(2)Fax:202-493-2251.

(3)Mail or Delivery: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. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202-366-9329.

See the "Public Participation and Request for Comments" portion of theSUPPLEMENTARY INFORMATIONsection below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email Petty Officer Joseph Graun, Prevention Department, U.S. Coast Guard Sector Long Island Sound, (203) 468-4544,Joseph.L.Graun@uscg.mil;orLieutenant Isaac M. Slavitt, Waterways Management, U.S. Coast Guard First District, (617) 223-8385. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION: Table of Acronyms COTPCaptain of the Port DHSDepartment of Homeland Security FRFederal Register NPRMNotice of Proposed Rulemaking RNARegulated Navigation Area A. 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 tohttp://www.regulations.govand will include any personal information you have provided.

1. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking, 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 athttp://www.regulations.gov,or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, 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 email 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 tohttp://www.regulations.gov,type the docket number (USCG-2012-0623) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 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 the rule based on your comments.

2. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,type the docket number (USCG-2012-0623) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. 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.

3. 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 theFederal Register(73 FR 3316).

4. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one on or before September 17, 2012, using one of the methods specified underADDRESSES. 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 theFederal Register.

B. 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.

This proposal would establish speed and wake restrictions as well as allow the Coast Guard to prohibit all vessel traffic through the RNA during degaussing range replacement operations, both planned and unforeseen, that could pose an imminent hazard to persons and vessels operating in the area. The Coast Guard is not now planning (and will actively avoid) full closures of the waterway; however, given the nature of the work it is important that this regulatory tool be available if circumstances change. This rule is necessary to provide for the safety of life on the navigable waters during the replacement of the degaussing range and its supporting system.

C. Discussion of Proposed Rule

The U.S. Navy operates a fixed degaussing range in New London Harbor, New London, CT. This range is buried in sand on the bottom of the Thames River federal navigation channel southeast of Fort Trumbull State Park. The Navy uses this range to decrease unwanted magnetic fields in Navy vessels. On NOAA Charts, the degaussing range is outlined with a black dotted line and labeled “Degaussing Range”. The associated system of sensors and cables encompasses a much larger area of the river bottom, from the river's west shore by Fort Trumbull State Park southeasterly across the river to the river's eastern bank. On NOAA Charts, this supporting system's boundaries are outlined with a magenta dotted line and labeled “Cable Area”. The Navy is preparing to replace this range with new sensors, cables and supporting equipment. The replacement project is projected to last between four and six months, and is scheduled to begin on or about November 1, 2012.

The Coast Guard is not now planning (and will actively avoid) full closures of the waterway; however, given the nature of the work it is important that this regulatory tool be available if circumstances change. The Coast Guard attended the project's “95% Design Review Meeting” hosted by the U.S. Navy on April 17, 2012 in New London, CT. During the meeting, the Navy presented the project design and an overview of what operations must take place in order to complete the project. The Coast Guard discussed this project with the Navy to identify whether the project can be completed without channel closures. While the majority of the project will be completed without the need for full closures, the possibility remains that certain tasks will require closing the waterway due to the location of the degaussing range directly under the navigation channel.

The new trench will be located adjacent to the current degaussing range within the navigation channel. Excavating the trench and replacing equipment and cables will require barges and equipment to take up a portion of the channel while they perform various operations including excavating, diving, laying cables, and placing sensors. This process will beextremely complex and involves many safety hazards. In order to minimize safety hazards, the Coast Guard proposes to make the “Cable Area” (which includes the “Degaussing Range”) a temporary RNA.

This RNA would allow the Captain of the Port Sector Long Island Sound (COTP) to establish speed and wake restrictions and to prohibit vessel traffic on this portion of the river for limited periods when necessary for the safety of vessels and workers during construction work in the channel. The Coast Guard would enforce a five knot speed limit and “NO WAKE” zone and be able to close the designated area to all vessel traffic during any circumstance, planned or unforeseen, that poses an imminent threat to waterway users or construction operations in the area. Complete waterway closures would be minimized to that period absolutely necessary and made with as much advanced notice as possible.

Entry into, anchoring or movement within this proposed RNA during a closure would be prohibited unless authorized by the COTP or a designated representative. In the event of an emergency, all construction equipment would need to be vacated for emergency vessels (i.e. Fire Rescue Boat, Marine Police Boat, or Environmental Response Boat).

This project is expected to be completed within a four to six month period. However, in order to prepare for project delays associated with inclement weather, permitting and other circumstance we propose a twenty-four month effective period for the RNA from November 1, 2012 until October 31, 2014.

The project currently faces several factors that could lead to delays. A project coordinator has not yet been identified. Additionally, as of July 2012 state environmental and Army Corps of Engineers permits have not been requested by the Navy. These permits can take several months to obtain and once obtained may include restrictions on certain underwater activities. The Navy will not know the extent of all restrictions until the permits are issued.

If the project is completed before October 31, 2014, the COTP could suspend enforcement of the RNA. The COTP would ensure that notice of the suspension of enforcement reached affected segments of the public by all appropriate means. Such means of notification could include, but would not be limited to, Broadcast Notice to Mariners and Local Notice to Mariners.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard determined that this rulemaking would not be a significant regulatory action for the following reasons: vessel traffic would only be excluded from the RNA for limited durations (if at all), and speed and wake restrictions are not unduly restrictive, and the RNA covers a small geographic area. Advanced public notifications would also be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

2. Impact on Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter or transit within the regulated areas during a vessel restriction period.

The RNA would not have a significant economic impact on a substantial number of small entities for the following reasons: vessel traffic would only be excluded from the RNA for limited durations (if at all), and speed and wake restrictions are not unduly restrictive, and the RNA covers a small geographic area. Additionally, before the effective period of a waterway closure, advanced public notifications would be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners and Broadcast Notice to Mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. 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) ormore in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This proposed rule would 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.

9. Civil Justice Reform

This proposed 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.

10. Protection of Children From Environmental Health Risks

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

12. Energy Effects

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 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.

13. Technical Standards

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves restricting vessel movement within a regulated navigation area. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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 proposes to amend 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. 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.T01-0623 to read as follows:

§ 165.T01-0623 Regulated Navigation Area: Thames River, New London, CT.

(a)Location.The following area is a regulated navigation area: All navigable waters of the Thames River adjacent to Fort Trumbull State Park in New London, CT, from surface to bottom bounded to the north by a line connecting the following points: Point “1”, 41°20′40″ N, 072°05′32″ W east to point “2”, 41°20′40″ N, 072°05′15″ W then southeast to point “3”, 41°20′31.8″ N, 072°05′03″ W then south to point “4”, 41°20′28″ N, 072°05′03″ W then east to point “5”, 41°20′30″ N, 072°04′48″ W; bounded to the east by following the shoreline south from point “5” to point “6”, 41°20′19″ N, 072°04′46″ W; bounded to the south by a line connecting the following points: point “6” west to point “7”, 41°20′17″ N, 072°05′13″ W then north to point “8” 41°20′27.2″ N, 072°05′15″ W then northwest to point “9” 41°20′29.5″ N, 072°05′17″ W then west to point “10” 41°20′29.5″ N, 072°05′30″ W then northwest to point “11” 41°20′31″ N, 072°05′34″ W; bounded to the west by following the shoreline north from point “11” back to the start, point “1”.

(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, anchoring, or movement within this zone, during periods of enforcement, is prohibited unless authorized by the Captain of the Port Long Island Sound (COTP) or the COTP's designated representative.

(3) During periods of enforcement, a speed limit of five knots will be in effect within the regulated area and all vessels must proceed through the area with caution and operate in such a manner as to produce no wake.

(4) During periods of enforcement, all persons and vessels must comply with all orders and directions from the COTP or the COTP's designated representative.

(5) During periods of enforcement, upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.

(6) Persons and vessels may request permission to enter the zone during periods of enforcement on VHF-16 or via phone at 203-468-4401.

(7) Notwithstanding anything contained in this rule, the Rules of the Road (33 CFR part 84—Subchapter E, inland navigational rules) are still in effect and should be strictly adhered to at all times.

(c)Effective Period.This rule is effective from November 1, 2012 until October 31, 2014.

(d)Enforcement Period.(1) Except when suspended in accordance with paragraph (d)(2) of this section, this regulated navigation area is in force 24 hours a day from November 1, 2012 until October 31, 2014.

(2) Notice of suspension of enforcement: The COTP may suspend enforcement of the regulated navigation area. If enforcement is suspended, the COTP will cause notice of the suspension of enforcement to be made by all appropriate means to the affected segments of the public. Such means of notification may include, but are not limited to, Broadcast Notice to Marinersand Local Notice to Mariners. Such notifications will include the date and time that enforcement is suspended as well as the date and time that enforcement will resume.

(3) Violations of this regulated navigation area should be reported to the COTP, at 203-468-4401 or on VHF-Channel 16. Persons in violation of this regulated navigation area may be subject to civil or criminal penalties.

Dated: August 22, 2012. D.B. Abel, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.