[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43514-43517]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18127]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2009-1131]
RIN 1625-AA01


Anchorage Regulations; Narragansett Bay and Rhode Island Sound, 
RI

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is removing an obsolete naval explosives 
anchorage in Narragansett Bay, Rhode Island, and adding an offshore 
anchorage in Rhode Island Sound south of Brenton Point, Rhode Island, 
for use by vessels waiting to enter Narragansett Bay.

DATES: This rule is effective August 24, 2012.

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-2009-1131 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-1131 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call Mr. Edward G. LeBlanc at Coast Guard Sector Southeastern New 
England, 401-435-2351. If you have questions on viewing the docket, 
please call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On March 21, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled ``Anchorage Regulations; Narragansett Bay and Rhode 
Island Sound, RI,'' in the Federal Register (76 FR 15246). We received 
nine comments on the proposed rule.

Basis and Purpose

    The Secretary of Homeland Security has delegated to the Coast Guard 
the authority to establish and regulate anchorage grounds in accordance 
with 33 U.S.C. 471; 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; 
and Department of Homeland Security Delegation No. 0170.1. The purpose 
of this rule is to remove an obsolete and no longer used anchorage in 
Narragansett Bay from the Code of Federal Regulations (CFR), and 
formalize and codify an area of Rhode Island Sound that under current 
informal practice is routinely used by mariners as an anchorage while 
waiting to enter Narragansett Bay.

Background

    This rule removes the Naval explosives anchorage described in 33 
CFR 110.145(a)(2)(ii). Naval Station Newport, Rhode Island had 
indicated to the Coast Guard that this anchorage is obsolete and no 
longer necessary for naval purposes. Leaving this obsolete anchorage in 
the CFR and on navigation charts leaves mariners with the mistaken 
impression that the area is reserved for a special purpose (i.e., 
explosives vessel anchoring) when in fact, it is no longer used or 
needed for that purpose.
    The rule also adds a new anchorage to formalize and codify the 
current practice of commercial vessels that anchor in an area south of 
Brenton Point, Newport, Rhode Island, while waiting to enter 
Narragansett Bay. Establishing this anchorage in the CFR, and placing 
it on navigation charts, will remove ambiguity and clarify for mariners 
the preferred and safest area in which to anchor offshore when waiting 
to enter Narragansett Bay.
    The new anchorage area would encroach on a Navy Restricted Area (33 
CFR 334.78). According to the regulation, anchoring within the 
Restricted Area is precluded only during periods of mine warfare 
training. However, mine warfare training is no longer conducted in that 
area. Thus, the Coast Guard requested that the U.S. Army Corps of 
Engineers remove the now-defunct area from the Code of Federal 
Regulations. In a letter received by the Corps of Engineers on May 5, 
2011, the U.S. Navy also requested that the Corps of Engineers 
disestablish the Restricted Area as it is no longer needed. (A copy of 
the letter from the Commanding Officer, Naval Station Newport, is 
included in the docket for this rule.) In February 2012 the Corps of 
Engineers initiated the rulemaking process to remove the Restricted 
Area from the Code of Federal Regulations.

Discussion of Comments and Changes

    We received nine comments on the proposed rule. One letter, from 
the Office of Environmental Policy and Compliance, U.S. Department of 
the Interior (DOI), stated that DOI had no comment on the proposed 
rule.
    The Coast Guard received no comments opposed to the section of this 
rule that disestablishes the obsolete naval explosives anchorage in 
Narragansett Bay.
    The other comments were from private citizens, municipalities in 
the Narragansett Bay area, a Rhode Island state representative, and the 
Massachusetts Attorney General, among others. These comments expressed 
a generally consistent theme: Comments requested that the Coast Guard 
conduct a more thorough environmental impact analysis consistent with 
the National Environmental Policy Act (NEPA). Specifically, comments 
requested that the Coast Guard's NEPA analysis discuss the possible 
adverse impacts to the environment from potential use of the proposed 
anchorage by tankers that may deliver liquefied natural gas (LNG) to 
the proposed Weaver's Cove LLC import facility in Mt. Hope Bay, 
Massachusetts. Several comments requested a public meeting to discuss 
the NEPA issue vis [agrave] vis the Weaver's Cove LNG proposal.
    At the time the Coast Guard published its March 2011 NPRM for this 
rulemaking, Weaver's Cove LLC was seeking approval from the Federal 
Energy Regulatory Commission (FERC) to build and operate a waterfront 
LNG facility in Fall River, Massachusetts. On June 20, 2011, Weaver's 
Cove LLC formally notified FERC that it was withdrawing its proposals. 
On July 6, 2011, FERC issued documentation vacating its July 15, 2005, 
authorization to Weaver's Cove for a waterfront facility in Fall River, 
Massachusetts, and terminating its (FERC's) processing of the Weaver's 
Cove application for an LNG offload facility in Mt. Hope Bay.

[[Page 43515]]

These two documents issued by FERC officially terminated the Weaver's 
Cove proposal. (Copies of the Weaver's Cove letter to FERC of June 20, 
2011, and FERC's documentation issued on July 6, 2011, are included in 
the docket for this rule.) There are no other proposals before FERC to 
import LNG into Narragansett Bay or Mt. Hope Bay.
    Because there are no proposals to import LNG into Narragansett Bay 
or Mt. Hope Bay, there are no LNG-related impacts to be analyzed. Some 
comments challenge the Coast Guard's use of and reliance upon its 
directives while other comments assert the Coast Guard must comply with 
other federal laws. Responses to those comments immediately follow. 
Additionally, the methodology used by the Coast Guard to conduct its 
environmental analysis in compliance with NEPA is discussed in the 
Environment section below.
    With respect to a public meeting, the Coast Guard believes a public 
meeting is not necessary because all requests for a public meeting were 
made in connection with concern about a (now-withdrawn) plan for the 
creation of an LNG terminal in the Fall River area. Because there is no 
foreseeable plan for an LNG terminal in the Fall River area, the Coast 
Guard does not believe that a public meeting would aid this rulemaking. 
The Coast Guard contacted the Corporation Counsel for the city of Fall 
River, which was a leading opponent to the Weaver's Cove LNG proposal 
and had requested a public meeting, and learned that with the 
withdrawal of the Weaver's Cove LNG proposal, and there being no other 
LNG proposals pending or anticipated, Fall River believes there is no 
longer a need for a public meeting to discuss this anchorage 
regulation.
    Even though the LNG-related concerns raised in the comments are no 
longer relevant, the Coast Guard wishes to clarify that it is incorrect 
to view the establishment of this anchorage as giving permission for 
vessels to anchor. Rather, commercial vessels of all kinds already can 
and do anchor in this area; the act of designating this anchorage is 
intended simply to reflect current practices for the purpose of 
promoting safety of navigation.
    One comment, expressly adopted by the comments of four others, 
challenges the Coast Guard's use of categorical exclusion 34(f) in 
accordance with Section 2.B.2 and Figure 2-1 of the NEPA Implementing 
Procedures and Policy for Considering Environmental Impacts, Commandant 
Instruction M164175.1D, and Department of Homeland Security Management 
Directive 023-01.
    We determined that reliance on the Coast Guard-specific categorical 
exclusion is proper despite the fact that at the time the NPRM was 
published, Department of Homeland Security Management Directive 023-01 
did not contain unique categorical exclusions for the Coast Guard. 
However, that directive was updated on October 3, 2011, to reflect the 
Council on Environmental Quality-approved categorical exclusions for 
the Coast Guard.
    The same comment also alleges that the Coast Guard action adding 
the anchorage is a piece of a larger action in contravention of 
Department of Homeland Security Management Directive 023-01.
    We determined that the proposed action adding the anchorage is not 
a piece of a larger action. The designation by the Coast Guard of an 
anchorage that overlaps an obsolete U.S. Navy restricted area is not 
part of an action by the Army Corps of Engineers to remove the 
restricted area designation and vice versa. In its determination 
whether to designate the area as an anchorage, the Coast Guard 
contacted Commanding Officer, Naval Station Newport to verify that 
there are no unexploded devices that would pose a hazard to navigation. 
Commanding Officer, Naval Station Newport, confirmed that there are no 
unexploded devices and wrote a letter to Chief, Regulatory Division, 
U.S. Army Corps of Engineers to disestablish the restricted area as it 
is no longer used by the Navy. Thus, the Army Corps of Engineers' 
ability to remove the designation is not an integral part of nor 
required for the establishment of the anchorage area. A copy of 
Commanding Officer, Naval Station Newport's letter of 5 May 2011 is 
included in the docket for this rule.
    One comment states that the Coast Guard failed to acknowledge the 
designation of the entire Narragansett Bay as an environmentally 
sensitive area and that the proposed impact on the entire bay area must 
be analyzed.
    The Coast Guard acknowledges that Narragansett Bay is an 
environmentally sensitive area designated by the U.S. Environmental 
Protection Agency under the National Estuary Program. In conducting our 
Categorical Exclusion Determination, we identified the closest waterway 
location designated as an environmentally sensitive area. We determined 
that establishing an anchorage in this area would not affect the 
designated environmental area because the area is already used as an 
anchorage and our action is administrative in nature. Therefore, we 
concluded that if the proposed action did not affect the closest 
environmentally sensitive area, it would also not affect the other 
environmentally sensitive areas further from the proposed anchorage.
    Four comments claimed that the Coast Guard action establishing the 
anchorage must undergo a NEPA Environmental Assessment (EA) before 
mariners would be regularly using the anchorage area.
    We determined that we are not required to conduct an EA under this 
line of reasoning because mariners have historically used the area as 
an anchorage, and this usage was not the result of a Coast Guard 
action. The Coast Guard action of placing the existing anchorage area 
in the public notice and on navigation charts does not alter the 
current activity at that location. The Coast Guard action simply 
removes ambiguity and clarifies for mariners the preferred and safest 
area in which to anchor offshore when waiting to enter Narragansett 
Bay.
    Two comments recommended the U.S. Fish and Wildlife Service 
determine whether the proposed action establishing the anchorage would 
have adverse impacts.
    We determined that because the U.S. Department of the Interior 
under which the U.S. Fish and Wildlife Service operates responded that 
the Department has no comment on the proposed rulemaking, consultation 
with the U.S. Fish and Wildlife Service was not necessary.
    One comment requested that we clearly state the size of the new 
anchorage. The new Brenton Point anchorage established by this rule is 
a parallelogram-shaped box approximately 4.98 nautical miles by 1.95 
nautical miles, which produces an anchorage of approximately 9.7 square 
nautical miles. Designing the size and shape of anchorages is a 
subjective process that considers many factors, including type and 
number of vessels that may use the anchorage, water depth, bottom 
topography, nearby vessel traffic patterns, etc. All of those factors 
were considered in designing the Brenton Point anchorage. The size of 
this anchorage is considered to be the minimum necessary to safely 
accommodate the type and number of commercial vessels that may use it, 
and its size is consistent with or smaller than many other anchorages 
in the southeastern New England area.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses

[[Page 43516]]

based on 13 of these statutes or executive orders.

Executive Order 12866 and Executive Order 13563

    This 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, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. The Office of Management and Budget has not reviewed it 
under that Order.
    We expect minimal additional cost impacts to the industry because 
this rule is not imposing fees, permits, or specialized requirements 
for the maritime industry to utilize this anchorage area. The effect of 
this rule is not significant as it removes one obsolete anchorage that 
is no longer used by the U.S. Navy, and documents and codifies another 
area that is currently used by commercial vessels. This improves safety 
for vessels using the anchorage grounds, facilitates the transit of 
deep draft vessels through the area, and improves safety for other 
vessels transiting in the vicinity of the new anchorage area.

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 received no comments from the Small Business 
Administration on this rule.
    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 
might be small entities: The owners or operators of vessels that have a 
need to anchor in Narragansett Bay or Rhode Island Sound at the 
entrance to Narragansett Bay.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule only codifies current navigation practices that are already in use 
by small entities in this area. The anchorage will not affect vessels' 
schedules or their ability to freely transit within these areas of 
Narragansett Bay or Rhode Island Sound. The anchorage imposes no 
monetary expenses on small entities since it does not require them to 
purchase any new equipment, hire additional crew, or make any other 
expenditures.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding this rule so that they can 
better evaluate its effects on them and participate in the rulemaking 
process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Protest Activities

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

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 does not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

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

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

[[Page 43517]]

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 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. The evaluation of the impact of LNG vessels on the 
anchorage is not required because the proposed LNG facility at Weaver's 
Cove has been withdrawn as documented above, and thus there are no 
reasonably foreseeable LNG-related impacts that need to be considered.
    In accordance with the Coast Guard NEPA implementing Instruction, 
this rule is categorically excluded from further analysis and 
documentation under NEPA. Since this rule involves removal of an 
obsolete anchorage area and establishment of another, Categorical 
Exclusion (34)(f) under Figure 2-1 of the Instruction applies. The rule 
is no longer controversial. Public comments and input primarily 
addressed issues arising from the now-abandoned proposal to create an 
LNG facility at Weaver's Cove, Fall River, Massachusetts. The Coast 
Guard has no evidence to suggest that any other criteria noted in DHS D 
023-01, Section V.F.12 or COMDTINST 16475.1D Chapter 2 B 2(b) would 
suggest an inquiry beyond the categorical exclusion. An environmental 
analysis checklist and a categorical exclusion determination are 
available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035, 2071; 
33 CFR 1.05-1; Department of Homeland Security Delegation No. 
0170.1.


0
2. Remove and reserve Sec.  110.145(a)(2)(ii).

0
3. Add Sec.  110.149 to subpart B to read as follows:


Sec.  110.149  Narragansett Bay, RI.

    (a) Brenton Point anchorage ground. An area bounded by the 
following coordinates: 41[deg]22'37.1'' N, 71[deg]14'40.3'' W; thence 
to 41[deg]20'42.8'' N, 71[deg]14'40.3'' W; thence to 41[deg]18'24.1'' 
N, 71[deg]20'32.5'' W; thence to 41[deg]20'22.6'' N, 71[deg]20'32.5'' 
W; thence back to point of origin.
    (b) The following regulations apply in the Brenton Point anchorage 
ground.
    (1) Prior to anchoring within the anchorage area, all vessels shall 
notify the Coast Guard Captain of the Port via VHF-FM Channel 16.
    (2) Except as otherwise provided, no vessel may occupy this 
anchorage ground for a period of time in excess of 96 hours without 
prior approval of the Captain of the Port.
    (3) If a request is made for the long-term lay up of a vessel, the 
Captain of the Port may establish special conditions with which the 
vessel must comply in order for such a request to be approved.
    (4) No vessel in such condition that it is likely to sink or 
otherwise become a menace or obstruction to navigation or anchorage of 
other vessels shall occupy an anchorage except in cases where 
unforeseen circumstances create conditions of imminent peril to 
personnel and then only for such period as may be authorized by the 
Captain of the Port.
    (5) Anchors shall be placed well within the anchorage areas so that 
no portion of the hull or rigging will at any time extend outside of 
the anchorage area.
    (6) The Coast Guard Captain of the Port may close the anchorage 
area and direct vessels to depart the anchorage during periods of 
adverse weather or at other times as deemed necessary in the interest 
of port safety and security.
    (7) Any vessel anchored in these grounds must be capable of getting 
underway if ordered by the Captain of the Port and must be able to do 
so within two hours of notification by the Captain of the Port. If a 
vessel will not be able to get underway within two hours of 
notification, permission must be requested from the Captain of the Port 
to remain in the anchorage. No vessel shall anchor in a ``dead ship'' 
status (propulsion or control unavailable for normal operations) 
without prior approval of the Captain of the Port.
    (8) Brenton Point anchorage ground is a general anchorage area 
reserved primarily for commercial vessels waiting to enter Narragansett 
Bay.
    (9) Temporary floats or buoys for marking anchors or moorings in 
place will be allowed in this area. Fixed mooring piles or stakes will 
not be allowed.
    (10) All coordinates referenced use datum: NAD 83.

    Dated: July 13, 2012.
Daniel B. Abel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-18127 Filed 7-24-12; 8:45 am]
BILLING CODE 9110-04-P