
[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Rules and Regulations]
[Pages 58105-58108]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24051]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0857]
RIN 1625-AA11


Regulated Navigation Area; Saugus River, Lynn, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) on the navigable waters of the Saugus River in Lynn, 
Massachusetts. This temporary rule allows the Coast Guard to suspend 
all vessel traffic within the regulated area to allow for stabilization 
operations that could pose a safety hazard to vessels operating in the 
area. This temporary rule is necessary to enhance vessel safety, marine 
environmental protection, and provide for the safety of life on the 
navigable waters during the removal of a damaged section of the Energy 
Systems Pipeline Bridge at Mile 2.3 of the Saugus River.

DATES: This rule is effective in the CFR on September 20, 2011 until 5 
p.m. on November 9, 2011. This rule is effective with actual notice for 
purposes of enforcement from 8 a.m. on September 12, 2011 until 5 p.m. 
on November 9, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0857 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0857 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 Mr. Mark Cutter, U.S. Coast Guard Sector 
Boston Waterways Management Division, Coast Guard; telephone 617-223-
4000, e-mail Mark.E.Cutter@uscg.mil, or Lieutenant Junior Grade Isaac 
Slavitt, Coast Guard First District Waterways Management Branch, 
telephone 617-223-8385, e-mail Isaac.M.Slavitt@uscg.mil. If you have 
questions on viewing or submitting material to the docket, call Renee 
V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedures 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 a notice of proposed rulemaking (NPRM) 
with respect to this rule; notice and comment is impracticable because 
immediate action is necessary to ensure the safety of the public in the 
vicinity of construction operations being conducted in the Saugus 
River.
    Serious damage to this pipeline bridge was caused during Tropical 
Storm Irene, which passed through Boston on 28 August, 2011. Currently, 
the pipeline is leaning over precariously and is in danger of 
collapsing. Two phases of work are needed for this pipeline: 
stabilization (which may include removal of the damaged segment), and 
then full removal at a later date. This rule addresses only emergency 
stabilization efforts. A separate rule will be promulgated with normal 
notice and comment periods for the longer term full repair project.
    On September 1, 2011, General Electric, the pipeline operators, 
advised that the Energy Systems Pipeline bridge demolition project 
would require periodic closures of the Saugus River at mile 2.3 to 
remove the damaged piping support structure. The hazard that the 
damaged portion of the Energy Systems Pipeline bridge poses to the 
navigational channel necessitates that all mariners comply with this 
RNA. Immediate action is needed to control vessels operating in the 
restricted waterway in order to facilitate repairs and to protect the 
maritime public from the hazards associated with the stabilization of 
this damaged structure. Publishing a NPRM and waiting 30 days for 
comment would be contrary to the public interest since immediate action 
is needed to restrict

[[Page 58106]]

vessel traffic to effect repairs and to protect the maritime public 
from the hazards associated with removal of the damaged section of the 
structure, including falling debris and the use of heavy machinery.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective fewer than 30 days after 
publication in the Federal Register. Any delay would be both 
impracticable and contrary to the public interest. Immediate action is 
necessary for the reasons discussed above, supporting good cause under 
5 U.S.C. 553(b)(B).

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 rule is to facilitate the removal of 
the damaged piping support structure for the Energy Systems Pipeline 
Bridge located at approximately mile 2.3 of the Saugus River in Lynn, 
MA. Establishing this temporary rule will allow the necessary 
stabilization work to be completed and will protect the maritime public 
from the hazards associated with the demolition of this damaged 
structure. This structure is in danger of collapse and its 
stabilization allows for the future safe transit of vessels in the 
area.

Discussion of Rule

    This action is intended to prohibit vessel traffic on a portion of 
the Saugus River, when necessary for the safety of navigation, while 
work is done on the Energy Systems Pipeline Bridge on the Saugus River 
in Lynn, MA. The regulated area encompasses all waters within 100 yards 
of either side of the Energy Systems Pipeline Bridge. The Coast Guard 
may close the area described in this rule to all vessel traffic during 
any circumstance, planned or unforeseen, that poses a threat to 
waterway users operating in the area. Complete waterway closures will 
be made with as much advance notice as possible.
    The project consists of stabilization, cutting and removal of 
damaged abandoned pipeline and associated steel support structure. 
Demolition operations will temporarily block the navigable channel due 
to positioning of a barged-based lifting crane, a deck barge, and an 
associated towing vessel.
    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. Any violation of 
this rule 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 Captain of the Port (COTP) Boston will cause notice of 
enforcement, suspension of enforcement, or closure of the waterway to 
be made by all appropriate means for 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 and Local 
Notice to Mariners.

Regulatory Analyses

    We developed this temporary final 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.
    The economic impact of this rule will be severely limited for the 
following reasons: (1) The actual waterway restriction imposed by this 
RNA is expected to last no longer than 12 hours at a time; (2) 
demolition work that restricts the navigational channel will be 
scheduled when there is limited demand for this navigational channel; 
and (3) advance notification will be made to the maritime community via 
Local Notice to Mariners, Broadcast Notice to Mariners, and on the 
Internet at http://homeport.uscg.mil/boston.

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 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 vessels intending to 
transit in a portion of the Saugus River during periods of construction 
until the Energy Systems Pipeline bridge has been structurally 
stabilized. Several small marinas up-river from the damaged pipeline 
may also be affected.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: 
although the regulated navigation area will apply to the entire width 
of the Saugus River navigational channel, restriction of vessel traffic 
will be limited to not more than 12 hours at a time and response to 
traffic demand will be coordinated in advance by the Captain of the 
Port Boston in consultation with the harbormaster of Lynn, MA. Before 
the effective period, we will issue maritime advisories widely 
available to users of the waterway. Additionally, because of the 
dangerous and unstable nature of the damaged pipeline, many vessel 
operators may have independently reached the conclusion that it is too 
dangerous to pass underneath. Therefore, the inherent danger of the 
damaged pipeline is probably already preventing vessel operators from 
passing through.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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.
    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

[[Page 58107]]

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 an 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 that 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 establishment of a RNA. An 
environmental analysis checklist and a categorical exclusion 
determination will be available in the docket where indicated under 
ADDRESSES.

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, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.T01-0857 to read as follows:


Sec.  165.T01-0857  Regulated Navigation Area; Saugus River, Lynn MA.

    (a) Regulated Area. The following area is a regulated navigation 
area: all waters within 100 yards of either side of the Energy Systems 
Pipeline Bridge at approximately mile 2.3 of the Saugus River in 
position 42[deg]26'56'' N, 070[deg] 58'31'' W, in Lynn, MA. All 
geographic coordinates are North American Datum of 1983 (NAD 83).
    (b) Regulations.
    (1) The general regulations contained in 33 CFR 165.13 apply.
    (2) No vessel may enter or transit through the regulated area 
during enforcement periods without the express permission of the 
Captain of the Port (COTP) Boston.
    (3) Vessels transiting through the RNA with COTP permission are 
required to do so at reduced speed so as to produce no wake. Vessels 
transiting through the RNA with COTP permission must still remain at 
least 150 feet away from all demolition equipment.
    (c) Effective Period. This rule is effective from 8 a.m. on 
September 12, 2011 until 5 p.m. on November 9, 2011.
    (d) Enforcement Period. This rule will be enforced when necessary 
for construction operations. The COTP Boston will cause notice of 
enforcement periods to be made by reasonable means, which may include 
but are not limited to a Broadcast Notice to Mariners.


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    Dated: September 9, 2011.
D. A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-24051 Filed 9-19-11; 8:45 am]
BILLING CODE 9110-04-P


