[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Rules and Regulations]
[Pages 1020-1023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-104]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1125]
RIN 1625-AA11


Regulated Navigation Area; S99 Alford Street Bridge 
Rehabilitation Project, Mystic River, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The United States Coast Guard is establishing a regulated 
navigation area (RNA) on the navigable waters of the Mystic River under 
and surrounding the S99 Alford Street Bridge which crosses the Mystic 
River between Boston and Chelsea, Massachusetts. This temporary interim 
rule is intended to protect both vessels and construction workers by 
restricting vessel traffic during periods where the bridge is being 
repaired.

DATES: This rule is effective in the CFR on January 9, 2012 through 
November 30, 2012. This rule is effective with actual notice for 
purposes of enforcement from December 27, 2011 until 11:59 p.m. on 
November 30, 2012. Public comments will be accepted and reviewed by the 
Coast Guard through November 30, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-1125 using any one of the following methods:
    (1) Federal e-Rulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Documents indicated in this preamble as being available in the 
docket are part of docket USCG-2011-1125 and are available online by 
going to http://www.regulations.gov, inserting USCG-2011-1125 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Mr. Mark Cutter, Coast Guard Sector 
Boston Waterways Management Division, telephone (617) 223-4000, email 
[email protected]; or Lieutenant Junior Grade Isaac Slavitt, Coast 
Guard First District Waterways Management Branch, telephone (617) 223-
8385, email [email protected]. If you have questions on viewing 
the docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.
    As this temporary interim rule will be in effect before the end of 
the comment period, the Coast Guard will evaluate and revise this rule 
as necessary to address significant public comments.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-1125), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand deliver, or mail your comment, it will be considered as 
having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an 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 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-2011-1125'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2011-1125'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting within the meaning of 
the

[[Page 1021]]

Administrative Procedure Act (APA), 5 U.S.C. 553. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe such 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 has held or participated in one informal waterway 
user meeting where waterway closures and restrictions were discussed. 
We anticipate holding additional informal meetings, with opportunity 
for public questions or comments, during this project. We will provide 
written summaries of any such meetings in the docket.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior Federal 
Register notice pursuant to authority under section 4(a) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision 
authorizes an agency to issue a rule without prior notice when the 
agency for good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Under 5 U.S.C. 
553(b)(B), the Coast Guard finds that good cause exists for not 
publishing a notice of proposed rulemaking (NPRM) with respect to this 
rule because the Coast Guard was not provided enough notice by the 
Commonwealth of Massachusetts to allow for a notice and comment period.
    A full waterway closure was not requested of the Coast Guard until 
November 23, 2011, when the Massachusetts Department of Transportation 
(MA DOT) requested a complete waterway closure beginning December 12, 
2011 until May 31, 2012. MA DOT's request for full waterway closure was 
not timely according to the existing Coast Guard requirements, and the 
late submission did not give the Coast Guard enough time to publish an 
NPRM in order to solicit comments concerning a waterway closure before 
implementing this interim rule.
    It is still in the public interest to promulgate this rule, as it 
is necessary to protect the safety of both the construction crew and 
the waterway users operating in the vicinity of the bridge construction 
zone. A delay or cancellation of the currently ongoing bridge 
rehabilitation project in order to accommodate a full notice and 
comment period would be contrary to the public interest as it would 
delay necessary operations, result in increased costs, and delay the 
date when the bridge is expected to reopen for normal operations. The 
Coast Guard believes it would be impracticable and contrary to the 
public interest to delay this regulation. At any time, the Coast Guard 
may publish an amended rule if necessary to address public concerns.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety. See 33 U.S.C. 1231 and Department 
of Homeland Security Delegation No. 0170.1.
    The purpose of this interim rule is to ensure the safe transit of 
vessels in the area and to protect all persons, vessels, and the marine 
environment during the rehabilitation project of the S99 Alford Street 
Bridge.

Discussion of Rule

    This action is intended to control vessel traffic for the duration 
of the S99 Alford Street Bridge rehabilitation over the main channel of 
the Mystic River. The Coast Guard may close the regulated area 
described in this rule to all vessel traffic during any circumstance 
that poses an imminent threat to waterway users operating in the area. 
Complete waterway closures will be made with as much advance notice as 
possible.
    The COTP Sector Boston will cause notice of enforcement, suspension 
of enforcement, or closure of the waterway to be made by all 
appropriate means to ensure the widest distribution among the affected 
segments of the public. Such means of notification may include, but are 
not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, 
and Marine Safety Information Bulletins.
    Entry into this RNA is prohibited unless authorized by the COTP 
Sector Boston. Any violation of this RNA is punishable by civil and 
criminal penalties, in rem liability against the offending vessel, and 
the initiation of suspension or revocation proceedings against Coast 
Guard-issued merchant-mariner credentials.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

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 the economic impact of this rule to be minimal because 
the amount of traffic in this waterway is extremely limited. 
Furthermore, the Captain of the Port has the ability to suspend the 
provisions of this regulation when necessary.

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 marinas, businesses 
(such as waterside restaurants), and vessels who intend to transit in 
the Mystic River beneath the S99 Alford Street Bridge during the 
effective period.
    This regulation may have some impact on the public, but the 
potential impact will be minimized for the following reasons: The 
primary waterway users, of which there are very few, are recreational 
vessels of various sizes and do not normally operate during the months 
between December and April. Many parties that have the potential to be 
affected have been involved in the discussions and have made plans to 
work around the closure times. We will use appropriate means to inform 
the public before, during, and at the conclusion of any RNA enforcement 
period.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121),

[[Page 1022]]

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.

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

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

Technical Standards

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

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves the establishment of an 
RNA. An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES. Any comments received concerning environmental impacts will 
be considered and changes made to the environmental analysis checklist 
and categorical exclusion determination as appropriate.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T01-1125 to read as follows:


Sec.  165.T01-1125  Regulated Navigation Area; S99 Alford Street Bridge 
rehabilitation project, Mystic River, MA

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): All navigable waters of the Mystic River between Boston and 
Chelsea, MA, from surface to bottom, within 100 yards of any point on 
the S99 Alford Street Bridge.
    (b) Regulations.
    (1) The general regulations contained in 33 CFR 165.10, 165.11, and 
165.13 apply in addition to those provisions outlined below.
    (2) In accordance with the general regulations, entry into or 
movement within this zone, during periods of

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enforcement, is prohibited unless authorized by Captain of the Port 
(COTP) Sector Boston.
    (3) All persons and vessels must comply with all directions given 
to them by the COTP Sector Boston or the on-scene representative. The 
``on-scene representative'' of the COTP is any Coast Guard 
commissioned, warrant or petty officer who has been designated by the 
COTP to act on the COTP's behalf. The on-scene representative may be on 
a Coast Guard 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 Auxiliary may be present to inform vessel operators 
of this regulation.
    (4) 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.
    (5) Notwithstanding any other provisions in this regulation, the 
movement of official, emergency vessels within the regulated area is 
permitted provided that the contractor is notified in order to remove 
potential hazards or obstructions.
    (6) All other relevant regulations, including but not limited to 
the Rules of the Road (33 CFR subchapter E, Inland Navigational Rules) 
remain in effect within the regulated area and must be strictly 
followed at all times.
    (c) Enforcement Period:
    (1) This regulated navigation area is enforceable 24 hours a day 
from December 27, 2011 through November 30, 2012.
    (2) Suspension of enforcement: The COTP Sector Boston will cause 
notice of enforcement, suspension of enforcement, or closure of the 
waterway to be made by all appropriate means to achieve the widest 
distribution among the affected segments of the public. Such means of 
notification may include but are not limited to Broadcast Notice to 
Mariners, Local Notice to Mariners and Marine Safety Information 
Bulletins. Such notification will include the date and time that 
enforcement is suspended as well as the date and time that enforcement 
will resume.
    (3) Report violations of this regulated navigation area to the COTP 
Sector Boston, at (617) 223-5757 or on VHF-Channel 16.

    Dated: December 27, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-104 Filed 1-6-12; 8:45 am]
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