2012-30005. Regulated Navigation Area; S99 Alford Street Bridge Rehabilitation Project, Mystic River, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

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 [phone], email [e-mail]; or Lieutenant Isaac Slavitt, Coast Guard First District Waterways Management Branch, telephone [phone], email [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 81/2 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.

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 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

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.

2. Add § 165.T01-1130 to read as follows:

§ 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 [phone] or on VHF-Channel 16.

Dated: November 29, 2012.

D.B. Abel,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.