[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Rules and Regulations]
[Pages 73916-73919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30005]


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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 Coast Guard is reinstating a regulated navigation area 
(RNA) that was promulgated to protect the public against hazardous 
conditions created by repair work on the S99 Alford Street Bridge 
across the Mystic River between Boston and Chelsea, Massachusetts. The 
original RNA terminates on November 30, 2012 and must be reinstated 
because repair work is continuing beyond that date. This rule promotes 
the Coast Guard's maritime safety and stewardship missions.

DATES: This rule is effective in the CFR on December 12, 2012. This 
rule is effective with actual notice for purposes of enforcement from 
11:59 p.m. on November 30, 2012, through December 31, 2014. Public 
comments will be accepted and reviewed by the Coast Guard through 
December 31, 2014.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2011-1125. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' Box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with the 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.

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 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

[[Page 73917]]

Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port

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, 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.

1. 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, 
type the docket number (USCG-2012-1125) in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.
    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.

2. 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, 
type the docket number ``USCG-2012-1125'' in the ``SEARCH'' box and 
click ``Search.'' Click and 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. We have an agreement with the Department of Transportation to 
use the Docket Management Facility.

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 the 
Federal Register (73 FR 3316).

4. Public Meeting

    The Coast Guard does not currently plan to hold public meetings. 
However, a public meeting may be requested by using one of the 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.

B. Regulatory Information

    This is the second temporary interim rule with request for comments 
issued by the Coast Guard to establish a regulated navigation area in 
connection with the S99 Alford Street Bridge rehabilitation over the 
main channel of the Mystic River between Boston and Chelsea, 
Massachusetts. The first rule was published in the Federal Register on 
January 9, 2012 (77 FR 1020). We received no public comments on the 
first rule.
    The Coast Guard is issuing this second 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 has good cause to find that publishing a 
notice of proposed rulemaking (NPRM) for this second rule, and taking 
public comment on that NPRM, would be both impracticable and contrary 
to the public interest. The repair work that necessitated the first 
rule has not been completed on schedule and therefore the hazardous 
conditions that gave rise to the need for RNA protective measures 
continue. Expiration of the first RNA on November 30, 2012 leaves no 
time for notice and comment procedures if both the repair work and RNA 
protective measures are to remain in place after that date. Temporarily 
stopping necessary repair work would impracticably delay the resumption 
of normal traffic patterns and raise construction costs, contrary to 
the public interest. To some extent, it is also unnecessary to follow 
normal notice and comment practice with respect to this RNA, because 
the affected public can clearly see that the bridge repair work and 
that work's associated hazards continue, and anyone who wishes to 
comment on the need for or the terms of the RNA may at any time submit 
comments to the Coast Guard, and the Coast Guard will respond to those 
comments.
    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.

C. 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 temporary interim rule and request for comments 
is to keep in place and extend the regulated navigation area that was 
the subject of the Coast Guard temporary interim rule and request for 
comments published in the Federal Register on January 9, 2012 in order 
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.

[[Page 73918]]

D. Discussion of Rule

    This rule reinstates a regulated navigation area that was 
promulgated to protect the public against hazardous conditions created 
by repair work on the S99 Alford Street Bridge across the Mystic River 
between Boston and Chelsea, Massachusetts. The original RNA took effect 
with actual notice on December 27, 2011, was the subject of a temporary 
interim rule and request for comments published in the Federal Register 
on January 9, 2012, and expires by its own terms at 11:59 p.m. on 
November 30, 2012. However, the repair work is continuing beyond that 
date and therefore the RNA must be reinstated to extend the RNA's 
protective measures for the duration of that work. This new temporary 
interim rule and request for comments makes no substantive changes in 
the RNA.

E. 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.

1. Regulatory Planning and Review

    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, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) Executive Order 12866 or under 
section 1 of Executive Order 13563. 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.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended requires federal agencies to consider the potential impact of 
regulations on small entitles during rulemaking. The Coast Guard 
certifies under 5 U.S.C. 605(b) that this rule would 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: this 
action only serves to reinstate an RNA that is already in place and for 
which no public comments were received. 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.

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 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 the FOR FURTHER INFORMATION CONTACT, 
above.

4. 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).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on 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 rule under that Order and determined 
that it 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 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.

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) 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``Significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. 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

[[Page 73919]]

of a category of actions that do not individually or cumulatively have 
a significant effect on the human environment. This rule involves the 
modification of an existing regulated navigation area. This rule is 
categorically excluded from further review under, paragraph 34(g) of 
figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this 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 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.T01-1130 to read as follows:


Sec.  165.T01-1130  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 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 11:59 p.m. on November 30, 2012 through 
December 31, 2014.
    (2) 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: November 29, 2012.
D.B. Abel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-30005 Filed 12-11-12; 8:45 am]
BILLING CODE 9110-04-P