[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Proposed Rules]
[Pages 42869-42871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17742]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish 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 November 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 proposed rule would prohibit vessels and 
persons from being in the safety zone unless authorized by the Captain 
of the Port Boston or a designated representative. We invite your 
comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before September 18, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0023 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Mark Cutter, Waterways Management 
Division, U.S. Coast Guard Sector Boston, telephone 617-223-4000, email 
Mark.E.Cutter@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
NAD 83 North American Datum 1983
Sec.  Section
U.S.C. United States Code
MBTA Massachusetts Bay Transportation Authority

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. The exact times 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 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. The proposed 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 
proposed temporary safety zone without obtaining permission from the 
COTP 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 proposed safety zones.
    The purpose of 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. The Coast Guard is 
proposing this rulemaking under authority in 46 U.S.C. 70034 
(previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The Coast Guard is proposing to establish a safety zone starting at 
12:01 a.m. on November 1, 2019, to 11:59 p.m. on June 30, 2023. The 
safety zone would cover all navigable waters within 100 yards of the 
MBTA Railroad Bridge, at mile 0.7, across the Annisquam River, 
Gloucester, Massachusetts. 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 exist. Any closure is 
expected to last less than two weeks. The duration of the zone is 
intended to ensure the safety of vessels, the maritime public, 
construction workers, and the marine environment during periods of 
replacement of the MBTA Railroad Bridge over the main channel of the 
Annisquam River, Gloucester, Massachusetts. During the enforcement 
period, all vessels and persons must obtain permission from the COTP 
Boston or a designated representative before entering the safety zone.

IV. Regulatory Analyses

    We developed this proposed 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.

[[Page 42870]]

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 proposed rule has 
not been designated a ``significant regulatory action,'' under 
Executive Order 12866. Accordingly, the proposed 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 proposed 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 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 certifies under 5 U.S.C. 605(b) that this 
proposed 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 this 
safety zone may be small entities, for the reasons stated in section 
IV.A above, this proposed rule will not have a significant economic 
impact on any vessel owner or operator.
    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.
    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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 made a preliminary 
determination 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 proposed 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 November 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. Normally such actions are 
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 
preliminary Record of Environmental Consideration

[[Page 42871]]

supporting this determination is 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 
proposed 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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 a new Sec.  165.T01-0023 to read as follows:


Sec.  165.T01-0023  Safety Zone; 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 Periods. This rule is enforceable from 12:01 a.m. 
on November 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, 
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 regulation.
    (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 following 
regulations, 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 regulation, individuals 
may reach the COTP Boston or a COTP-designated representative via 
Channel 16 (VHF-FM) or 617-223-5757 (Sector Boston Command Center).
    (3) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232.

    Dated: August 13, 2019.
Eric. J. Doucette,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2019-17742 Filed 8-16-19; 8:45 am]
BILLING CODE 9110-04-P


