2011-18044. Regulated Navigation Area; Chelsea Street Bridge Construction, Chelsea, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

SUMMARY:

The United States Coast Guard is establishing a regulated navigation area (RNA) on the navigable waters of the Chelsea River under and surrounding the Chelsea Street Bridge (CSB) that crosses the Chelsea River between East Boston and Chelsea, Massachusetts. This temporary interim rule allows the Coast Guard to suspend all vessel traffic within the RNA for construction operations, both planned and unforeseen, that could pose an imminent hazard to vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during the construction of the Chelsea Street Bridge.

DATES:

This rule is effective in the CFR on July 19, 2011 through May 31, 2012. This rule is effective with actual notice for purposes of enforcement on July 8, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2011-0536 using any one of the following methods:

(1) Federal e-Rulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(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-2011-0536 and are available online by going to http://www.regulations.gov,, inserting USCG-2011-0536 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 e-mail MST1 David Labadie of the Waterways Management Division, U.S. Coast Guard Sector Boston; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 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-2011-0536), 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 e-mail 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-2011-0536” 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 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.

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-2011-0536” 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 in connection with the public comment period for this interim rule. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe 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. Although they were not held specifically to solicit public comments on this interim rule, and were not announced in the Federal Register, the Coast Guard has held or participated in multiple locally announced informal waterway user meetings where waterway closures and restrictions were discussed, and we anticipate holding one or more additional informal meetings, with opportunity for public questions or comments, during the bridge construction. 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 need for waterway closures was not brought to the attention of the Coast Guard until April 5, 2011. Concerned that the initial waterway closures proposed by J.F. White Contracting Company might have a significant impact on waterway users, it was necessary for the Coast Guard to move quickly to protect public safety. There was insufficient time and therefore it was impracticable to issue an NPRM and conduct a prior notice and comment period. We held informal planning meetings at which the construction plans were presented to and discussed with waterway users; stakeholder comments and concerns were identified and many have been incorporated into this regulation. To view the stakeholder comments and concerns see the CSB meeting minutes in the docket. This rule 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 ongoing bridge maintenance in order to accommodate a full notice and comment period would be contrary to the public interest as it would delay necessary operations thus prolonging the time that construction barges and equipment would be in this location. Additionally, the dynamic nature of the construction process and multitude of construction vessels necessitate that all mariners navigate at a safe speed within the RNA in accordance with Rule 6 of the Inland Navigation Rules, as the barge and construction equipment configuration may change on a daily basis. In order to address any further public concerns, this rule is available for public comment until September 19, 2011. At that time the Coast Guard will publish an amended rule if necessary to address public concerns.

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, as immediate action is needed to protect vessels transiting the area from hazards imposed by construction barges and equipment on the Chelsea River under and surrounding the Chelsea Street Bridge, Chelsea, MA. Any delay in the effective date of this rule would be contrary to the public interest as immediate action is necessary to close the channel as needed from July 8, 2011 to May 31, 2012. These closures are necessary in order to protect vessels transiting in the area from hazards imposed by construction barges and equipment and to expedite the removal of the old Chelsea St. Bridge and construction of the new bridge and fender system.

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 construction of the Chelsea Street Bridge involves large machinery and construction vessel operations above and in the navigable waters of the Chelsea River. The ongoing operations are, by their nature, hazardous and pose risks both to recreational and commercial traffic as well as the construction crew. In order to mitigate the inherent risks involved in the construction, it is necessary to control vessel movement through the area.

The purpose of this rule is to ensure the safety of waterway users, the public, and construction workers for the duration of the Chelsea Street Bridge construction from July 8, 2011 through May 31, 2012. The RNA will also protect vessels desiring to transit the area by ensuring that vessels are only permitted to transit when it is safe to do so.

Discussion of Rule

This action is intended to prohibit vessel traffic on a portion of the Chelsea River, when necessary for the safety of navigation, while construction equipment works in the channel on demolition of the existing bridge and construction of its replacement. The Coast Guard may close the area prescribed in this rule to all vessel traffic during any circumstance, planned or unforeseen, 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 Coast Guard has discussed this project at length with the construction contractor, J.F. White Contracting Company, to identify if the project can be completed without channel closures and, if possible, what impact that would have on the project timeline. Through these discussions, it became clear that while the majority of construction activities during the span of this project would not require waterway closures, there are certain tasks that can only be completed in the channel and will require closing the waterway. J.F. White issued a letter on April 5, 2011 detailing the required channel work phases that will need waterway closures.

There are currently two planned and ten proposed channel closure periods which are outlined below:

The first planned closure period will be from September 28-30, 2011, and will coincide with the launching of the new bridge truss.

The second planned closure will be from October 7-9, 2011 and will coincide with the concrete bridge deck placement.

There will be four proposed closure periods on dates to be determined between October and December 2011 for the installation of new bulkheads along both sides of the Chelsea River.

The fifth and sixth proposed closure periods will take place in January 2012 for the demolition of the fendering system and the dredging on the Chelsea, MA side of the Chelsea River. These will be for 15-day periods and will be intermittent closures.

The seventh proposed closure period will take place in February 2012 for the installation of new aids to navigation on the Chelsea, MA side of the Chelsea River and will be a 7-day period with intermittent closures.

The eighth and ninth proposed closure periods will take place in February and March of 2012 for the demolition of the fendering system and the dredging on the E. Boston, MA side of the Chelsea River. These will be for 15-day periods and will be intermittent closures.

The tenth proposed closure period will take place in March 2012 for the installation of new aids to navigation on the E. Boston, MA side of the Chelsea River and will be a 7-day period with intermittent closures.

The project is expected to be complete in April 2012 but this rule will be made effective through the end of May 2012 to account for any unforeseen construction delays.

On a case-by-case basis, depending on the construction schedule, J.F. White may request a waterway closure on various dates from July 8, 2011 through May 31, 2012. As discussed below, J.F White will notify the Coast Guard of planned activities as soon as possible; preferably four weeks in advance of any event.

The Coast Guard will notify the maritime community of planned waterway closure dates via Marine Information Broadcasts, Coast Guard Local Notices to Mariners and Marine Safety Information Bulletins.

Closure periods listed above will be made available to J. F. White Contracting Company with the understanding that the construction schedule as well as weather and tide conditions may not allow them to use all closures. For that reason, J. F. White will notify the Coast Guard of planned activities as soon as possible and preferably four weeks in advance. Closure periods similar to those outlined above should be expected throughout the duration of this rule. Additionally, during the winter and into the early spring of 2012 there will certain tasks (i.e. bulkhead and Aids to Navigation installation) that will require a more than 24-hour closure as well as several 15-day long, 12 hour closures to complete the demolition of fender systems and dredging operations. Once these closure periods are identified they will be published with the widest distribution among the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Entry into this RNA during a closure is prohibited unless authorized by the Sector Boston Captain of the Port (COTP). In the event of an emergency all construction equipment shall be removed from the channel to allow for emergency vessels to pass (i.e., Fire Rescue Boat, Marine Police Boat, or Environmental Response Boat).

The implementation of this RNA does not negate the fact that the Inland Rules of the Road as found in 33 CFR part 84 (subchapter E) must be strictly adhered to. Mariners are strongly urged to monitor VHF channel 13 when transiting the area and to communicate with fellow mariners to facilitate movement and/or passing arrangements within the channel.

Any violation of the RNA described herein is punishable by, among others, 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.

The Sector Boston Captain of the Port will cause notice of enforcement, suspension of enforcement, or closure of this RNA to be made by all appropriate means to affect the widest distribution among the affected segments of the public. Such means of notification will include, but is not limited to, Notice of Enforcement published in the Federal Register, Broadcast Notice to Mariners and Local Notice to Mariners.

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.

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 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, charter fishing vessels and commercial fishing vessels who intend to transit in those portions of the Chelsea River between July 8, 2011 and May 31, 2012.

This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: The area of the closure is not likely to be transited by pleasure craft and they will be able to operate on all other portions of the Chelsea River not covered by the RNA. Additionally, 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. Marine radio broadcasts informing the public of any closures made by the RNA will be made before, during, and at the conclusion of the RNA closure enforcement periods.

Although the RNA will apply to the entire width of the river, under and surrounding the Chelsea Street Bridge traffic will be allowed to pass through the area with the permission of the COTP. Before the effective period, we will issue maritime advisories widely available to users of the river.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), 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. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call LT Judson Coleman, Prevention Department, Sector Long Island Sound, at 203-468-4596.

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 establishing of a regulated navigation area and therefore falls within the categorical exclusion noted above. 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

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.T01-0536 to read as follows:

§ 165.T01-0536

Regulated Navigation Area; Chelsea Street Bridge Construction, Chelsea, MA.

(a) Location. The following area is a regulated navigation area: All navigable waters of the Chelsea River in Chelsea, MA, from surface to bottom, within the following points (NAD 83): from 42°23.10′ N, 071°01.26′ W; thence to 42°23.15′ N, 071°01.20′ W; thence to 42°23.10′ N, 071°01.17′ W; thence to 42°23.07′ N, 071°01.24′ W; thence back to the first point.

(b) Regulations. (1) The general regulations contained in 33 CFR 165.10, 165.11, and 165.13 apply.

(2) In accordance with the general regulations, entering into, transiting through, mooring or anchoring within this regulated area is prohibited unless authorized by the Captain of the Port (COTP) Boston.

(3) All persons and vessels must comply with the Coast Guard Captain of the Port or the designated on-scene patrol personnel.

(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) Vessels may request permission to enter the zone during periods of enforcement on VHF-16 or via phone at 617-223-5757.

(6) All other relevant regulations, including but not limited to the Rules of the Road (33 CFR part 84—Subchapter E, Inland Navigational Rules) remain in effect within the regulated area and should be strictly followed at all times.

(c) Effective Period. This rule is effective from July 8, 2011 to 11:59 p.m. on May 31, 2012.

(d) Enforcement Period. (1) This regulated navigation area is enforceable 24 hours a day from July 8, 2011 until May 31, 2012.

(2) Notice of suspension of enforcement. If enforcement is suspended, the COTP will cause a notice of the suspension of enforcement by all appropriate means to affect the widest publicity among the affected segments of the public. Such means of notification may also include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Such notification will include the date and time that enforcement is suspended as well as the date and time that enforcement will resume.

(3) Notice of waterway closure. In the event of a complete waterway closure, the COTP will make advance notice of the closure by all means available to affect the widest public distribution including, but not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Such notification will include the date and time of the closure as well as the date and time that normal vessel traffic can resume.

(4) Violations of this regulated navigation area may be reported to the COTP Sector Boston, at 617-223-5757 or on VHF-Channel 16.

Dated: July 7, 2011.

J.B. McPherson,

Captain, U.S. Coast Guard, Acting Commander, First Coast Guard District.