[Federal Register Volume 82, Number 121 (Monday, June 26, 2017)]
[Rules and Regulations]
[Pages 28773-28775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13253]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0327]
RIN 1625-AA00


Safety Zone; Danvers River, Beverly, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters within a 300-yard radius of the swing span portion 
of the Massachusetts Bay Transportation Authority (MBTA)/AMTRAK Bridge, 
at mile 0.05 on the Danvers River, between Salem and Beverly, 
Massachusetts. The safety zone is needed to protect personnel, vessels 
and the marine environment from potential hazards created during 
removal and replacement of the swing span portion of the MBTA Railroad 
Bridge. When enforced, this regulation prohibits entry of vessels or 
people into the safety zone unless authorized by the Captain of the 
Port (COTP) Boston or a designated representative.

DATES: This rule is effective without actual notice from June 26, 2017 
through November 1, 2017. For the purposes of enforcement, actual 
notice will be used from June 20, 2017 through June 26, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0327 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mark Cutter, Waterways Management Division, U.S. Coast 
Guard Sector Boston, telephone 617-223-4000, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MBTA Massachusetts Bay Transportation Authority
NAD 83 North American Datum 83
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On March 23, 2017, Sector Boston was made aware of a bridge 
rehabilitation project that includes the replacement of the swing span 
portion of MBTA Railroad Bridge, which spans the Danvers River in 
Beverly and Salem, Massachusetts. The COTP Boston has determined that 
the potential hazards associated with the bridge rehabilitation project 
will be a safety concern for anyone within the work area.
    The project is scheduled to begin on June 5, 2017 and be completed 
by November 1, 2017. During this project, removal and replacement of 
the swing span will take place. No vessel or person will be permitted 
to enter the safety zone without obtaining permission from the COTP or 
a designated representative. The safety zone will be enforced during 
different periods when work barges and gantry cranes will be placed in 
the navigable channel or when other hazards to navigation arise. The 
Coast Guard will issue a Broadcast Notice to Mariners via marine 
channel 16 (VHF-FM) 24 hours in advance to any period of enforcement or 
as soon as practicable in response to an emergency. If the project is 
completed prior to November 1, 2017, enforcement of the safety zone 
will be suspended and notice given via Broadcast Notice to Mariners.
    The Coast Guard is issuing this temporary final 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 an NPRM with respect to this rule 
because doing so would be impracticable and contrary to the public 
interest. The late finalization of project details did not give the 
Coast Guard enough time to publish an NPRM, take public comments, and 
issue a final rule before the construction work is set to begin. It 
would be impracticable and contrary to the public interest to delay 
promulgating this rule as it is necessary to protect the safety of the 
public and waterway users.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register.

[[Page 28774]]

Delaying the effective date of this rule would be impracticable and 
contrary to the public interest for the same reasons specified above.

III. Legal Authority and Need for Rule

    The legal basis for this temporary rule is 33 U.S.C. 1231. The COTP 
Boston has determined that potential hazards associated with the bridge 
rehabilitation project starting on June 5, 2017 and continuing through 
November 1, 2017 will be a safety concern for anyone within the work 
zone. This rule is needed to protect personnel, vessels, and the marine 
environment within the safety zone while the bridge rehabilitation 
project is completed.

IV. Discussion of the Rule

    This rule establishes a safety zone from June 5, 2017 through 
November 1, 2017. The safety zone will cover all navigable waters from 
surface to bottom of the Danvers River, MA within a 300-yard radius of 
the swing span portion of the Massachusetts Bay Transportation 
Authority (MBTA)/AMTRAK Bridge. The duration of the zone is intended to 
protect people, vessels, and the marine environment in these navigable 
waters during the bridge rehabilitation project. No vessel or person 
will be permitted to enter the safety zone without obtaining permission 
from the COTP or a designated representative.
    The Coast Guard will notify the public and local mariners of this 
safety zone through appropriate means, which may include, but are not 
limited to, publication in the Federal Register, the Local Notice to 
Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-
FM) in advance of any scheduled enforcement period. The regulatory text 
we are enforcing appears at the end of this document.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    The Coast Guard has determined that this rulemaking is not a 
significant regulatory action for the following reasons: (1) The safety 
zone only impacts a small designated area of the Danvers River, (2) the 
zone will only be enforced when work barges and gantry cranes will be 
placed in the navigable channel during removal and replacement of the 
swing span or if necessitated by an emergency, (3) persons or vessels 
desiring to enter the safety zone may do so with permission from the 
COTP Boston or a designated representative. The Coast Guard will notify 
the public of the enforcement of this rule via appropriate means, such 
as via Local Notice to Mariners and Broadcast Notice to Mariners.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for all of the reasons discussed in 
the REGULATORY PLANNING AND REVIEW Section, this rule will not have a 
significant economic impact on any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 
section.
    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.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

    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 rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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 an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD,

[[Page 28775]]

which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 
determined 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 rule involves enforcing a temporary safety zone 
during the removal and replacement of the swing span MBTA Railroad 
Bridge, which spans the Danvers River in Beverly and Salem, 
Massachusetts. It is categorically excluded from further review under 
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record 
of Environmental Consideration (REC) for Categorically Excluded Actions 
will be 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.

G. 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.

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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T01-0327 to read as follows:


Sec.  165.T01-0327  Safety Zone--Massachusetts Bay Transportation 
Authority/AMTRAK Bridge--Danvers River, Beverly, MA.

    (a) Location. The following area is a safety zone. All navigable 
waters of the Danvers River, MA within a 300-yard radius of the swing 
span portion of the Massachusetts Bay Transportation Authority (MBTA)/
AMTRAK Bridge in position 42[deg]32.355' N, 070[deg]53.28' W (NAD 83).
    (b) Effective and enforcement period. This section is effective on 
June 20, 2017, through November 1, 2017, but will only be enforced 
during removal and replacement of the swing span portion of the MBTA 
Railroad Bridge or other instances which may cause a hazard to 
navigation, when deemed necessary by the Captain of the Port (COTP), 
Boston.
    (c) Regulations. When this safety zone is enforced, the regulations 
in paragraphs (c)(1) through (3) of this section, along with those 
contained in 33 CFR 165.23 apply:
    (1) No person or vessel may enter or remain in this safety zone 
without the permission of the Captain of the Port (COTP) or the COTP's 
representatives. However, any vessel that is granted permission by the 
COTP or the COTP's representatives must proceed through the area with 
caution and operate at a speed no faster than that speed necessary to 
maintain a safe course, unless otherwise required by the Navigation 
Rules.
    (2) Any person or vessel permitted to enter the safety zone shall 
comply with the directions and orders of the COTP or the COTP's 
representatives. Upon being hailed by a U.S. Coast Guard vessel by 
siren, radio, flashing lights, or other means, the operator of a vessel 
within the zone shall proceed as directed. Any person or vessel within 
the safety zone shall exit the zone when directed by the COTP or the 
COTP's representatives.
    (3) To obtain permissions required by this regulation, individuals 
may reach the COTP or a COTP representative via Channel 16 (VHF-FM) or 
617-223-5757 (Sector Boston Command Center).
    (d) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232.
    (e) Notification. Coast Guard Sector Boston will give notice 
through the Local Notice to Mariners and Broadcast Notice to Mariners 
for the purpose of enforcement of temporary safety zone. Sector Boston 
will also notify the public to the greatest extent possible of any 
period in which the Coast Guard will suspend enforcement of this safety 
zone.
    (f) COTP representative. The COTP's representative may be any Coast 
Guard commissioned, or petty officer or any federal, state, or local 
law enforcement officer who has been designated by the COTP to act on 
the COTP's behalf. The COTP's representative may be on a Coast Guard 
vessel, a Coast Guard Auxiliary vessel, a state or local law 
enforcement vessel, or a location on shore.

C.C. Gelzer,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2017-13253 Filed 6-23-17; 8:45 am]
BILLING CODE 9110-04-P