[Federal Register Volume 84, Number 230 (Friday, November 29, 2019)]
[Rules and Regulations]
[Pages 65677-65680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25859]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0023]
RIN 1625-AA00


Safety Zone, MBTA Railroad Bridge Replacement Project--Annisquam 
River, Gloucester, 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 100 yards of the Massachusetts Bay 
Transportation Authority (MBTA) Railroad Bridge, at mile 0.7, across 
the Annisquam River, Gloucester, Massachusetts, from December 1, 2019, 
through June 30, 2023. The temporary safety zone is necessary to 
protect personnel, vessels and the marine environment from potential 
hazards created during the replacement project of the MBTA Railroad 
Bridge. When enforced, this rule would prohibit vessels and persons 
from being in the safety zone unless authorized by the Captain of the 
Port (COTP) Boston or a designated representative.

DATES: This rule is effective from December 1, 2019, through June 30, 
2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to the Federal eRulemaking Portal at http://www.regulations.gov. Type USCG-2019-0023 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 about this 
rulemaking, call or email Mark Cutter, Waterways Management Division, 
U.S. Coast Guard Sector Boston, telephone 617-223-4000, email 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 65678]]

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
NPRM Notice of proposed rulemaking
NAD 83 North American Datum 1983
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The MBTA notified Sector Boston that there will be times in which 
the narrow navigable channel underneath the MBTA Railroad Bridge, 
Annisquam River, Gloucester, Massachusetts, will need to be closed for 
the replacement of submarine cables, abutment construction, and span 
replacement.
    In response, on August 19, 2019, the Coast Guard published a notice 
of proposed rulemaking (NPRM) titled ``Safety Zone, MBTA Railroad 
Bridge Replacement Project--Annisquam River, Gloucester, MA'' (84 FR 
42869). There we stated why we issued the NPRM, and invited comments on 
our proposed regulatory action related to this safety zone. During the 
comment period that ended on September 18, 2019, we received zero 
comments.
    The replacement project started in the fall of 2018 and is expected 
to be completed in December 2022. The COTP Boston determined that the 
potential hazards associated with the replacement of the submarine 
cables, abutment construction, and span replacement will be a safety 
concern for anyone within the work area. This temporary safety zone 
would be enforced during the replacement of the submarine cables, 
abutment construction, and span replacement or when other hazards to 
navigation arise. No vessel or person will be permitted to enter the 
temporary safety zone without obtaining permission from the COTP Boston 
or a designated representative.
    The exact times of any waterways closures are unknown. However, 
every effort is being made by the MBTA and contractor to schedule these 
closures during the winter months when boating traffic is minimal. The 
Coast Guard will notify the public of closures through the 
Massachusetts Bay Harbor Safety Committee meetings, Boston's Port 
Operators Group meetings, Local Notice to Mariners and through the 
Gloucester Harbormaster's network. The Coast Guard will issue a Safety 
Marine Information Broadcast (SMIB) via marine channel 16 (VHF-FM) 
seven days in advance of the enforcement of the safety zones.
    This rulemaking is to protect personnel, vessels, and the marine 
environment from potential hazards created during the replacement 
project of the MBTA Railroad Bridge, at mile 0.7, across the Annisquam 
River, Gloucester, Massachusetts. This rulemaking under authority in 46 
U.S.C. 70034 (previously 33 U.S.C. 1231).

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The COTP Boston and has determined that potential hazards 
associated with the replacement of the submarine cables, abutment 
construction, and span replacement will be a safety concern for anyone 
within the work area or anyone transiting within 100 yards of the MBTA 
Railroad Bridge. The purpose of this rule is to ensure the safety of 
vessels and personnel within 100 yards of the MBTA Railroad Bridge 
before, during, and after the replacement of the submarine cables, 
abutment construction, and span replacement.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received zero comments on the NPRM published 
August 19, 2019. The only regulatory text change in this rule is the 
start date is moved from November 1, 2019 to December 1, 2019. The 
contractor has stated that they are behind schedule and would not need 
the safety zone prior to December 1, 2019.
    This rule establishes a safety zone from 12:01 a.m. on December 1, 
2019, to 11:59 on June 30, 2023. While the safety zone would be 
effective throughout this period, it would only be enforced during 
periods when work barges and cranes will be placed in the navigable 
channel or when other hazards to navigation exist. Any closure is 
expected to last less than two weeks. The safety zone would include all 
navigable waters within 100 yards of the MBTA Railroad Bridge, at mile 
0.7, across the Annisquam River, Gloucester, Massachusetts. During 
times of enforcement, no vessel or person would be permitted to enter 
the safety zone without obtaining permission from the COTP Boston or a 
designated representative. The Coast Guard will notify the public of 
closures through the Massachusetts Bay Harbor Safety Committee 
meetings, Boston's Port Operators Group meetings, Local Notice to 
Mariners and through the Gloucester Harbormaster's network. The Coast 
Guard will issue a Safety Marine Information Broadcast (SMIB) via 
marine channel 16 (VHF-FM) seven days in advance of the enforcement of 
the safety zones.

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 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, duration, and time of year of the safety zone. There may be a 
time during the boating summer season that the safety zone needs to be 
enforced. However, the MBTA and contractor are making all attempts to 
schedule these needed closures during the winter months. We expect the 
adverse economic impact of this temporary rule to be minimal. We will 
provide ample notice of the safety zone effective dates and vessels 
will be able to enter the safety zone when construction equipment is 
not occupying the channel. Although this regulation may have some 
adverse impact on the public, the potential impact will be minimal 
because the boating season for vessels on the Annisquam usually 
concludes in mid-October and consequently the amount of traffic in this 
waterway during the effective period for the safety zone is limited to 
a few commercial lobstermen. The Gloucester Harbormaster will be 
allowing the lobstermen to moor their boats at the town docks on the 
harbor entrance side during periods of enforcement, which will allow 
the lobstermen to transit to their lobster gear with no impact. If a 
summer time closure is needed, with the exception of an emergency, we 
will coordinate with the MBTA, contractor, and Harbormaster to ensure 
that all alternatives are explored, the duration is of the shortest 
possible timeframe, and a minimum of two weeks notification

[[Page 65679]]

are given to the boating public via Local Notice to Mariners, Safety 
Marine Information Broadcast via marine channel 16 (VHF-FM) and through 
the Gloucester Harbormaster network.

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 received no comments from the Small Business 
Administration on this 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule would 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 (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 
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 would 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 would 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.

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 would 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 
Directive 023-01 and Commandant Instruction M16475.1D, 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 
the establishment of a temporary safety zone for the navigable waters 
within 100 yards of the MBTA Railroad Bridge, at mile 0.7, across the 
Annisquam River, Gloucester, Massachusetts, from December 1, 2019 
through June 30, 2023 for the replacement of the bridge. The safety 
zone will only be enforced during periods when work barges and cranes 
will be placed in the navigable channel or when other hazards to 
navigation arise. As discussed in our pre-construction meeting, any 
closure is expected to be of less than a two-week duration and all 
attempts are being made by the MBTA and contractor to schedule these 
closures during winter months when boating traffic is minimal. It is 
categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

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

    Marine safety, Navigation (water), Reporting and record keeping 
requirements, 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: 46 U.S.C. 70034, 70051; 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.T01-0023 to read as follows:


Sec.  165.T01-0023  Safety Zone; MBTA Railroad Bridge Replacement 
Project--Annisquam River, Gloucester, Massachusetts.

    (a) Location. The following area is a safety zone: All navigable 
waters within 100 yards of the Massachusetts Bay Transportation 
Authority (MBTA) Railroad Bridge, at mile 0.7, across the Annisquam 
River, Gloucester, Massachusetts.
    (b) Enforcement period. This section is enforceable from 12:01 a.m. 
on December 1, 2019, to 11:59 p.m. on June 30, 2023.
    (c) Definitions. As used in this section:
    (1) Designated representative means any Coast Guard commissioned,

[[Page 65680]]

warrant, petty officer, or any Federal, state, or local law enforcement 
officer who has been designated by the Captain of the Port (COTP) 
Boston, to act on his or her behalf. The designated representative may 
be on an official patrol vessel or may be on shore and will communicate 
with vessels via VHF-FM radio or loudhailer. In addition, members of 
the Coast Guard Auxiliary may be present to inform vessel operators of 
this section.
    (2) Official patrol vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP Boston to enforce this section.
    (d) Regulations. When this safety zone is enforced, the regulations 
in paragraphs (d)(1) and (2) of this section, along with those 
contained in Sec.  165.23 apply:
    (1) No person or vessel may enter or remain in this safety zone 
without the permission of the COTP Boston or the COTP's designated 
representatives. However, any person or vessel permitted to enter the 
safety zone must comply with the directions and orders of the COTP 
Boston or the COTP's designated representatives.
    (2) To obtain permission required by this section, individuals may 
reach the COTP Boston or a COTP-designated representative via Channel 
16 (VHF-FM) or 617-223-5757 (Sector Boston Command Center).
    (e) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232.

    Dated: November 21, 2019.
Eric J. Doucette,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2019-25859 Filed 11-27-19; 8:45 am]
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