[Federal Register: June 5, 2002 (Volume 67, Number 108)]
[Rules and Regulations]               
[Page 38590-38593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn02-2]                         

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-031]
RIN 2115-AA97

 
Safety Zone; Fore River Channel--Weymouth Fore River--Weymouth, 
MA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Weymouth Fore River in Weymouth, MA, in the main shipping channel, for 
four six-day periods, for the construction of a temporary bridge. The 
safety zones temporarily close all waters approximately 200 yards 
upstream and 100 yards downstream of the Route 3A (Fore River) Bridge. 
The safety zone prohibits entry into or movement within this area 
during the effective periods.

DATES: This rule is effective from June 10 to August 30, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Marine Safety Office Boston, 455 Commercial 
Street, Boston, MA between 8 a.m. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Dave Sherry, Marine Safety 
Office Boston, Waterways Safety and Response Division, at (617) 223-
3030.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On April 10, 2002, a notice of proposed rulemaking (NPRM) was 
published for this regulation at 67 FR 17314. The comment period for 
that NPRM expired on May 10, 2002. The Coast Guard is now proceeding to 
implement a final rule taking into account all comments received.
    Good cause exists for making this rule effective in less than 30 
days after Federal Register publication. Delaying this rule's effective 
date would be unnecessary and contrary to public interest, since the 
completion of the temporary bridge construction is deemed necessary to 
avoid a major disruption in landside transportation, which could 
potentially occur if the temporary bridge is not completed soon and the 
current Route 3A bridge becomes unsafe for road traffic. In addition, 
mariners and the surrounding communities have been prepared for this 
construction work to occur for over two years. The work was previously 
delayed due to fabrication and contractual problems.
    During these delays it was determined by Massachusetts Highway 
inspectors that the current Route 3A bridge is beyond repair and must 
be replaced. During the replacement project the temporary bridge will 
allow road traffic to continue unimpeded through this area. The current 
Route 3A Bridge has already exceeded its scheduled useable lifespan and 
construction of the temporary bridge has already been delayed by over 
one year. Further delay places the ability of transportation to 
continue over the Fore River at risk, and means the work would most 
likely have to be rescheduled for the same time period in 2003, since 
the May-August time period offers the most favorable working conditions 
on the bridge. Thus, it is in the best interest of all parties that the 
work be accomplished in the prescribed time periods herein.

Background and Purpose

    The Massachusetts Highway Department is currently involved in a 
project to erect a temporary bridge adjacent to the existing bridge 
over the Weymouth Fore River. The temporary bridge was deemed necessary 
as part of the overall Route 3A refurbishment project. The construction 
of the temporary bridge is in its final stages, which involves erection 
of two bridge gantries as well as the roadway sections.
    To accomplish this work, it is necessary to position a crane barge 
in the main shipping channel in the vicinity of the bridges. During the 
construction periods, the crane barge will obstruct the main shipping 
channel. Additionally, the work from the crane barge involves lifting 
large segments of heavy materials, thereby creating a safety hazard to 
mariners and the public in the vicinity of the crane barge and the 
construction operation during these periods. A safety zone is necessary 
to ensure public safety while the construction work is taking place.

Discussion of Rule

    This regulation establishes a safety zone 200 yards upstream and 
100 yards downstream of the Route 3A bridge on all waters within the 
Weymouth Fore River main shipping channel, which is bounded by 
42 deg.14'34" N, 070 deg.58'03" W; 42 deg.14'44" N, 070 deg.57'59" W; 
42 deg.14'45" N, 070 deg.58'03" W; and 42 deg.14'35" N, 070 deg.58'05" 
W, for four six-day construction periods during the effective times of 
the zone. These safety zones will close all waters within the points 
above for the construction periods. Although each closure period is for 
six days, Middlesex will only be authorized to work for a total of four 
days within each closure. Middlesex previously stated they only need 
four days within each closure, but the six day closure periods will aid 
Middlesex in keeping to their overall schedule, by accounting for 
potentially unworkable time within each safety zone period which may 
occur due to unfavorable weather conditions. If Middlesex is not 
working on a particular day within a safety zone period, the Captain of 
the Port (COTP) will allow entry of vessels into the zone area during 
that time to aid in further alleviating burdens on the maritime 
community.
    Within the effective period the zone will be enforced during the 
following closure times: from sunrise Monday June 10, 2002 until sunset 
on Saturday June 15, 2002, sunrise Monday June 24, 2002 until sunset on 
Saturday June 29, sunrise Monday July 15, 2002 until sunset on Saturday 
July 20, 2002, and sunrise Monday July 29, 2002 until sunset on 
Saturday August 3, 2002. In the event that the contractor is unable to 
complete the prescribed work during these times due to unforeseen 
conditions, the zone may be enforced during two planned contingency 
periods from sunrise Monday August 12, 2002 until sunset Saturday 
August 17, 2002 and from sunrise Monday August 26, 2002 until noon 
Friday August 30, 2002. The safety and security zones are deemed 
necessary for the protection of life and property within the COTP 
Boston zone. Public notifications will be made prior to the effective 
period via safety marine information broadcasts and local notice to 
mariners.

[[Page 38591]]

Discussion of Comments and Changes Implemented in the Final Rule

    The Coast Guard received seven (7) written comments during the 
comment period for the NPRM. All comments received were considered in 
the development of this final rule. Changes implemented in the final 
rule are the result of inter-Coast Guard evaluations of how to better 
employ and enforce the regulation and comments and recommendations of 
stakeholders in the COTP Boston zone. These stakeholders include the 
maritime industry, commercial contractors, the maritime law community, 
local yacht clubs, and recreational boaters. Changes from the NPRM are 
specified below and include a shift of the proposed June 24, 2002 
contingency closure to a scheduled closure and a shortening of the 
proposed August 24, 2002 contingency closure to alleviate burdens 
recreational mariners could potentially encounter due to the proximity 
of Labor Day weekend.

I. Use of the Alternate Route

    The Coast Guard received comments from local yacht clubs and 
maritime industry regarding the alternate route identified in the NPRM 
outside the Federal Channel in the vicinity of the safety zone. 
Comments emphasized the importance of this alternate route being 
implemented in the final rule as a means of alleviating burdens on the 
recreational boating community. Recreational boater representatives 
stated that 85 percent of the recreational boaters potentially impacted 
by the safety zone would be able to transit unimpeded around the safety 
zone through the alternate route. As a result, the Coast Guard has 
determined it is essential that the alternate route remain available 
under this final rule.
    The NPRM stated that the alternate route would be marked with aids 
to navigation. Marine industry representatives expressed concerns over 
use of the aids to navigation while the Federal Channel was open, 
citing the potential to confuse commercial shipping. As a result, the 
aids to navigation will be removed each time the Federal Channel is re-
opened after a safety zone period ends. The First Coast Guard District 
aids to navigation branch will supervise all aspects of the alternate 
channel navigation aids placement. Mariners are advised that the 
alternate route has the following dimensions: Maximum vertical 
clearance (channel margin) at high tide is 30 feet; maximum vertical 
clearance (channel margin) at low tide is 39 feet; maximum water depth 
at low tide is 14 feet, maximum horizontal clearance between fenders is 
75 feet. The availability of this alternate route does not preclude 
mariners from exercising good judgment when determining if their vessel 
can safely transit this route.

II. The Maximum Time Allowed for Work in the Six Day Periods Should Be 
Four Total Days

    Some comments related concerns that Middlesex should only be 
permitted to work for a total of four out of the six days scheduled for 
each effective time of the safety zone, since Middlesex has stated they 
only need four out of the six days to complete each portion of work. 
Limiting Middlesex to the four days they need will help further 
alleviate the burden on mariners in the area. We have determined it is 
beneficial to maintain the six day periods because it will aid 
Middlesex in keeping to their overall schedule, by accounting for 
potentially unworkable time within each safety zone period which may 
occur due to unfavorable weather conditions. If Middlesex is not 
working on a particular day within a safety zone period due to 
unforeseen circumstances, the COTP will allow entry of vessels into the 
zone area during that time to further alleviate burdens on the maritime 
community.

III. The Contingency Closure Adjacent to Labor Day Weekend May 
Significantly Impact Holiday Activities

    The Coast Guard received many comments from local yacht clubs and 
marinas strongly objecting to the contingency closure which would end 
on August 31 during Labor Day weekend. Despite the presence of the 
alternate route, recreational mariners still had concerns. To eliminate 
any possibility of a negative impact on recreational activities over 
Labor Day weekend, the Coast Guard will shorten the last contingency 
closure so that it ends at noon on Friday, August 30, 2002. Middlesex 
has stated that this will still allow enough time to complete any 
remaining work if needed after the first contingency closure.

IV. The Massachusetts Water Resource Authority (MWRA) Needs Close 
Contact With the Coast Guard to Ensure Its Operations Are Not Put in 
Jeopardy

    The Coast Guard received comments from MWRA regarding the potential 
impacts of this regulation upon their operations. The MWRA runs barges 
of sewage sludge from Deer Island across Boston Harbor to Quincy, MA 
through the Route 3A Bridge. It is essential to the operations of the 
large sewage treatment plant on Deer Island that these barges continue 
to make trips to Quincy, MA. MWRA has stated that their operations will 
be able to continue in conjunction with this regulation, but at the 
same time have requested the ability to stay in close contact with the 
Coast Guard should the output of the Deer Island plant drastically 
increase due to heavy rains or other unforeseen circumstances, thus 
creating a need to send a barge over to Quincy during one of the 
scheduled safety zone periods. The Coast Guard will arrange for 
Middlesex to temporarily stop work to permit MWRA to send a barge 
through the safety zone to alleviate these strains on the Deer Island 
plant.

V. Contingency Closures Need To Be Modified to Better Accommodate the 
Construction Schedule

    We received comments from Middlesex stating that due to unforeseen 
material fabrication problems, the first proposed contingency closure 
needs to be modified to a scheduled closure because all the materials 
to be used in the first closure will not be ready by June 10, 2002. In 
an effort to ensure the project keeps on schedule, the Coast Guard will 
convert the first proposed contingency closure date (June 24, 2002) in 
the NPRM to a scheduled closure for the purposes of the final rule. The 
Coast Guard understands that marine construction is a highly fluid 
business and unforeseen circumstances other than poor weather 
conditions may arise, and these reasons are why the contingency closure 
dates were proposed. The use of this one contingency date still leaves 
two contingency dates remaining.

Regulatory Evaluation

    Although this proposed regulation will prevent vessel traffic from 
transiting a portion of the Weymouth Fore River main shipping channel 
during the effective periods, the impact will not be ``significant'' 
for several reasons. Entities which may experience some impacts include 
one commercial oil transfer facility that receives large tank vessels, 
the Massachusetts Water Resources Authority (MWRA), which barges sludge 
to a facility in Quincy, Massachusetts, and numerous marinas, yacht 
clubs, and boat yards upstream of the Route 3A bridge. The 
Massachusetts Highway Department and its contractor, Middlesex 
Corporation, have met with these stakeholders to attempt to minimize 
impacts. Both the oil terminal and MWRA are able to, and have agreed 
to, work their vessel transit schedules around the six-day periods 
during which the safety zones are in effect

[[Page 38592]]

without significant negative economic impact.
    Marinas, yacht clubs, boat yards, and the boating public will not 
be severely impacted because an alternate water route has been 
identified and is available for use on the western (Quincy) side of the 
main channel during the periods which the safety zones are in effect. 
This alternate route will provide an alternative for the majority of 
the recreational waterway users to transit outside of the safety zone 
and under the western (Quincy) side of both the temporary bridge span 
and the existing Route 3A bridge span during the periods that the 
safety zones will be in effect. The alternate water route is limited by 
the following characteristics: maximum vertical clearance (channel 
margin) at high tide is 30 ft; maximum vertical clearance (channel 
margin) at low tide is 39 ft; minimum water depth at low tide is 14 ft; 
maximum horizontal clearance between pier fenders is 75 ft.
    Additionally, stakeholders are being provided advanced notice of 
these safety zones well in advance, through this rulemaking process, 
enabling them to make alternate arrangements in lieu of transiting the 
restricted area during the effective periods. Notifications will also 
be made to the local maritime community by safety marine information 
broadcasts and local notice to mariners.
    For the reasons cited above, this proposed rule is not a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, Regulatory Planning and Review, 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. It is not ``significant'' under the regulatory 
policies and procedures of the Department of Transportation (DOT) (44 
FR 11040, February 26, 1979). The Coast Guard expects the economic 
impact of this proposed rule to be minimal enough that a full 
Regulatory Evaluation under paragraph 10e of the regulatory policies 
and procedures of DOT is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard 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 the Fore River main shipping channel during the 
periods which the safety zones are in effect; or marinas, yacht clubs, 
and boat yards that service these vessels. For reasons outlined in the 
Regulatory Evaluation and Discussion of Comments sections, this impact 
is not expected to be significant.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed 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 want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. 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 Lieutenant Dave Sherry at the 
address listed under ADDRESSES.

Collection of Information

    This rule would call for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    The Coast Guard analyzed this rule under Executive Order 13132, 
Federalism, and has determined that this rule does not have 
implications for federalism under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This rule would not impose an unfunded mandate.

Taking of Private Property

    This rule would not effect 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

    The Coast Guard 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 
pose 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. A 
rule with tribal implications has 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.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under figure 2-1, (34)(g), of Commandant 
Instruction M16475.lD, this proposed rule is categorically excluded 
from further environmental documentation. A ``Categorical Exclusion 
Determination'' is available in the docket where indicated under 
ADDRESSES.

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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

[[Page 38593]]

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 proposes 
to amend 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

    2. From June 10 until August 30, 2002, add temporary Sec. 165.T02-
031 to read as follows:


Sec. 165.T02-031  Safety Zone: Fore River Channel, Weymouth Fore River, 
Weymouth, MA.

    (a) Location. The following area is a safety zone: 200 yards 
upstream and 100 yards downstream of the Route 3A bridge on all waters 
within the Weymouth Fore River main shipping channel, which is bounded 
by 42 deg.14'34" N, 070 deg.58'03" W; 42 deg.14'44" N, 070 deg.57'59" 
W; 42 deg.14'45" N, 070 deg.58'03" W; and 42 deg.14'35" N, 
070 deg.58'05" W.
    (b) Effective Date. This section is effective from June 10 to 
August 30, 2002. Within this period the zone will be enforced during 
the following closure periods: from sunrise Monday June 10, 2002 until 
sunset on Saturday June 15, 2002, sunrise Monday June 24, 2002 until 
sunset on Saturday June 29, 2002, sunrise Monday July 15, 2002 until 
sunset on Saturday July 20, 2002, and sunrise Monday July 29, 2002 
until sunset on Saturday August 3, 2002. In the event that the 
contractor is unable to complete the prescribed work during these 
times, two contingency closures may be enforced if needed from sunrise 
Monday August 12, 2002 until sunset Saturday August 17, 2002, and from 
sunrise Monday August 26, 2002 until noon on Friday August 30, 2002. If 
the Captain of the Port (COTP) determines that a safety zone in effect 
cannot be used due to unforeseen conditions (prompting the need to use 
a contingency closure), the COTP will discontinue the safety zone for 
that period and issue a broadcast notice to mariners (BNTM) so 
informing the public.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec. 165.23 of this part, entry into or movement within this zone will 
be prohibited unless authorized by the Captain of the Port Boston. 
Requests to enter the safety zone can be made by calling Marine Safety 
Office Boston at (617) 223-3000. (2) All vessel operators shall comply 
with the instructions of the COTP or the designated on-scene U.S. Coast 
Guard patrol personnel. On-scene Coast Guard patrol personnel include 
commissioned, warrant, and petty officers of the Coast Guard on board 
Coast Guard, Coast Guard Auxiliary, local, state, and federal law 
enforcement vessels.

    Dated: May 29, 2002.
M.E. Landry,
Commander, U.S. Coast Guard, Acting Captain of the Port, Boston, 
Massachusetts.
[FR Doc. 02-14055 Filed 6-4-02; 8:45 am]
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