[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Rules and Regulations]
[Pages 79363-79366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30761]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1026]
RIN 1625-AA00


Safety Zone; Saugus River, Lynn, MA

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is creating a safety zone for a portion of the 
Saugus River in Lynn, Massachusetts as requested by the Massachusetts 
Highway Department (MHD), to allow for vital repair work to commence on 
the Route 107/Fox Hill Bridge during the winter and spring months. This 
zone is necessary to protect mariners from the potential hazards 
associated with the

[[Page 79364]]

work being conducted by the Commonwealth of Massachusetts in making 
critical repairs to the bridge while it is closed to transiting vessels 
and vehicular traffic.

DATES: This interim rule is effective December 14, 2008 through May 15, 
2009. Comments and related material must reach the Docket Management 
Facility on or before January 28, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1026 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 methods. For 
instructions on submitting comments, see the ``Public Participation and 
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section 
below.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call Chief Eldridge McFadden, Waterways Management at 617-223-
3000. 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: 

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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-1026), 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, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a phone 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2008-1026'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your 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 them 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-1026 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 
either 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; or United States Coast 
Guard Sector Boston, 427 Commercial St, Boston, MA 02109 between 7 a.m. 
and 3 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).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one 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.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior notice 
and opportunity to comment 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 and 
opportunity to comment 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 in the best interest of the 
public to protect against the potential hazards associated with the 
bridge repair work to be conducted on the Route 107/Fox Hill Bridge. 
Further, the logistics with respect to that repair work were neither 
settled, nor provided, to the Coast Guard with sufficient time to draft 
and publish an NPRM, as such it would be impractical to delay the 
effective date of this rule as delaying the effective date would limit 
our ability to prevent, to the extent practicable, the exposure of 
members of the public to the hazards associated with the bridge repair 
work.
    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.

Background and Purpose

    A meeting between the Coast Guard, local lobstermen, local marina 
operators, lobster purchasing agents, and the bridge owner, MHD, was 
held on September 10, 2008. The owner of the bridge presented 
engineering evidence of the poor condition of the bridge and the need 
to perform major bridge repairs during the winter months. It was 
concluded that in order to keep the bridge operating safely and 
reliably until the major repairs can commence, the number of bridge 
openings must be reduced to save wear and tear on the mechanical 
components. A temporary deviation from standard bridge operation was 
deemed necessary in order to insure that the bridge continues to 
operate in a safe reliable manner until the major repairs can be made. 
No objection to the proposed temporary deviation schedule was voiced by 
interested parties. In rulemaking supporting that decision, the Coast 
Guard published a temporary change to

[[Page 79365]]

the Saugus Drawbridge Operation regulations (USCG-2008-0969) in the 
Federal Register on October 15, 2008 (73 FR 60954) allowing a deviation 
of the drawbridge operating guidelines. This regulation, effective from 
October 15, 2008 through December 15, 2008, allows the bridge to remain 
closed, opening on signal only on the half hour and hour.
    In addition, the long-term repairs may only take place by closing 
the bridge to both vehicular and vessel traffic, and removing portions 
of the bridge for work. Massachusetts Highway Department must bring in 
a large crane barge in order to conduct work on the bridge. This barge 
will be crossing the river, effectively restricting the use of the 
river. Frequently moving the barge to allow vessel traffic to pass is 
contrary to the public interest as it would further delay the bridge 
repairs well into the summer months, which are the primary boating and 
fishing seasons in Massachusetts. In order the assist the local 
lobstermen, MHD proposed to install a temporary dock system on the 
downstream of the existing bridge to mitigate the impacts of closing 
the bridge and blocking the channel with a large work barge. During the 
meeting the lobstermen indicated that the proposed dates for the bridge 
closure and waterway restriction along with the installation of a 
temporary dock system would be a good compromise that would satisfy 
their needs and still allow the rehabilitation bridge repairs to be 
completed late May 2009.
    An additional meeting between the Coast Guard, town officials, 
harbormaster and MHD took place on December 4, 2008, at which time the 
MHD agreed to work with affected waterway users to remove the crane 
barge restricting the waterway on no more than six occasions during the 
repair process to allow vessels that are able to pass beneath the 
bridge while in a closed position to do so.

Discussion of Rule

    This rule is effective from midnight on December 14, 2008 through 
midnight on May 15, 2009. The rule establishes a safety zone extending 
50 yards upriver from 107/Fox Hill Bridge in the Saugus River in Lynn, 
Massachusetts. While this safety zones has the practical effect of 
closing that portion of the waters, because (1) Recreational boating 
traffic is limited this particular time of year, (2) the MHD has made 
alternate mooring and docking arrangements for the fishermen which 
typically dock on the up river side of the bridge, and (3) MHD will 
remove the crane barge restricting waterway access under the bridge on 
at least six occasions allowing vessel traffic which may do so to pass 
beneath the closed bridge, the Captain of the Port anticipates minimal 
negative impact on vessel traffic. Public notifications will be made 
prior to and during the effective period via Local and Broadcast Notice 
to Mariners.

Regulatory Analyses

    We developed this interim 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 expects the economic impact of this rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. Although this 
rule may prevent traffic from transiting a portion of the Saugus River 
during the bridge repairs, the effect of this rule will not be 
significant for several reasons: Alternate arrangements for the offload 
and mooring of fishing vessels have been made, recreational boaters 
typically have their boats out of the water at this time of year in 
order to protect them from winter icing, MHD will remove the crane 
barge restricting waterway access on at least six occasions as 
requested by a waterway users (during which times vessel operators may 
request permission to transit through the safety zone promulgated by 
this rule), and continued notifications will be made to the local 
maritime community by broadcast and local notice to mariners.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of fishing and recreational 
vessels intending to transit or anchor in a portion of the Saugus River 
from midnight December 14, 2008 through midnight on May 15, 2009. This 
closure will not have a significant economic impact on a substantial 
number of small entities for the reasons described under the Regulatory 
Planning and Review section.
    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 (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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).

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.

[[Page 79366]]

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

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

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 5100.1 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). Based on our analysis 
we have determined that the action to establish this safety zone is 
included in the category of actions that the Coast Guard has determined 
will not result in significant individual or cumulative effects on the 
human environment. In addition, we have concluded that there are no 
extraordinary circumstances in this case that would limit the use of a 
categorical exclusion as described under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental analysis and documentation.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES. The Coast Guard will review this environmental evaluation in 
light of any comments received in response to this notice.

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, 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.


0
2. Add Sec.  165.T01-1026 to read as follows:


Sec.  165.T01-1026  Safety Zones; Saugus River, Lynn, Massachusetts.

    (a) Location. The following area is a safety zone: All waters from 
surface to bottom of the Saugus River for 50 yards on the upriver side 
of the Route 107/Fox Hill Bridge.
    (b) Enforcement Period. This rule will be enforced from midnight on 
December 14, 2008 until midnight on May 15, 2009.
    (c) Definitions. Designated representative, as used in this 
section, means a Coast Guard Patrol Commander, including a Coast Guard 
coxswain, petty officer, or other officer operating a Coast Guard 
vessel and a Federal, State, and local officer designated by or 
assisting the Captain of the Port (COTP).
    (d) Regulations. (1) In accordance with the general regulations in 
165.23 of this part, entry into or movement within this zone by any 
person or vessel is prohibited unless authorized by the Captain of the 
Port (COTP) Boston or the COTP's designated representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP via VHF channel 16 or 617-223-3201 to obtain 
permission to do so. Vessel operators given permission to enter or 
operate in the safety zone must comply with all directions given to 
them by the COTP.

    Dated: December 10, 2008.
Claudia C. Gelzer,
Commander, U.S. Coast Guard, Acting Captain of the Port Boston.
[FR Doc. E8-30761 Filed 12-24-08; 8:45 am]
BILLING CODE 4910-15-P