[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50545-50547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21868]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0843]
RIN 1625-AA00


Safety Zone; Barters Island Bridge, Back River, Barters Island, 
ME

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a safety zone for the 
navigable waters within a 50 yard radius from the center point of the 
Barters Island Bridge, on the Back River, ME, approximately 4.6 miles 
north of the mouth of the waterway. When enforced, this proposed 
rulemaking would prohibit persons and vessels from being in the safety 
zone during bridge replacement operations unless authorized by the 
Captain of the Port Northern New England or a designated 
representative, which could pose as imminent hazard to persons and 
vessels operating in the area. The safety zone is necessary to protect 
personnel, vessels, and the marine environment from potential hazards 
created by the demolition, subsequent removal, and replacement of the 
Barters Island Bridge and a temporary bridge. We invite your comments 
on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 8, 2018.

ADDRESSES: You may submit comments identified by docket number USCG-
2018-0843 using the Federal eRulemaking Portal at https://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 LT Matthew Odom, Waterways 
Management Division, U.S. Coast Guard Sector Northern New England, 
telephone 207-347-5015, email [email protected].

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
Sec.  Section
U.S.C. United States Code
MEDOT Maine Department of Transportation

II. Background, Purpose, and Legal Basis

    On April 27, 2018, the Maine Department of Transportation (MEDOT) 
applied for a bridge construction permit for Barter's Island Bridge 
with the Coast Guard. On June 22, 2018, the Coast Guard issued Public 
Notice 1-164, published it on the USCG Navigation Center website, and 
solicited comments through July 23, 2018. Three comments were received 
in response to the public notice: One commenter requested the project 
be stopped if any human remains, archaeological properties or other 
items of historical importance are unearthed and we report the 
findings. A second commenter notified us this project will not affect 
any Penobscot cultural/historic properties or interests and had no 
objection. A third commenter stated that Tennessee Gas Pipeline 
currently does not have facilities within the area. There were no 
statements of objection.
    On August 22, 2018, MEDOT requested by letter that the Coast Guard 
impose waterway restrictions on the Back River around the Barters 
Island Bridge between Hodgdon Island and Barters Island in Boothbay 
Harbor in support of the bridge improvements. The project includes the 
replacement of the swing span of the bridge and the existing center 
pier. A temporary fixed bridge will be used to maintain vehicle traffic 
during construction of the new bridge. The temporary fixed bridge will

[[Page 50546]]

reduce the vertical clearance of the channel to 6.8 feet mean high 
water (MHW) from approximately November 1, 2019 through May 31, 2020. 
On or about June 1, 2020, the new swing bridge is expected to be 
operating with unlimited clearance in the open position. The 
anticipated date for removal of the temporary bridge is August 2020. A 
bridge protection system and bridge lighting will be installed as part 
of the new bridge. Captain of the Port (COTP) Northern New England has 
determined that hazards associated with the bridge replacement project 
will be a safety concern for anyone within a 50-yard radius from the 
center point of the of the Barters Island bridge. It is anticipated 
that the Back River will be closed because of this safety zone for a 
total of 85 non-continuous days.
    The purpose of this rulemaking is to protect personnel, vessels and 
the marine environment from potential hazards created during the 
replacement of the Barters Island Bridge, on the Back River, ME. The 
Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

III. Discussion of Proposed Rule

    The COTP Northern New England proposes to establish a safety zone 
from December 1, 2018 through January 31, 2021. The safety zone would 
cover all navigable waters within a 50 yard radius of the center point 
of the Barters Island Bridge on Back River connecting Barter Island and 
Hodgdon Island, approximately 4.6 north of the mouth of the waterway. 
The duration of the zone is intended to ensure the safety of vessels, 
the maritime public, construction workers, and these navigable waters 
during the replacement of the Barters Island Bridge over the main 
channel of the Back River. During times of enforcement, no vessel or 
person would be permitted to enter the safety zone without obtaining 
permission from the COTP or a designated representative. The regulatory 
text we are proposing appears at the end of this document.
    The Coast Guard will notify the public and local mariners of this 
safety zone through appropriate means, which may include, but are not 
limited to, publication in the Federal Register, the Local Notice to 
Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-
FM) in advance of any enforcement.

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.

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 NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM 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 following 
reasons: (1) The safety zone only impacts a small designated area of 
Back River, (2) the safety zone will only be enforced during certain 
construction activities necessitating a full waterway closure for 
safety purposes, which is only anticipated to occur on 85 days over a 
two year period, or if there is an emergency, (3) persons or vessels 
desiring to enter the safety zone may do so with permission from the 
COTP Northern New England or a designated representative, (4) the Coast 
Guard will notify the public of the enforcement of this rule via 
appropriate means, such as via Local Notice to Mariners and Broadcast 
Notice to Mariners via marine Channel 16 (VHF-FM).

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 would not have a significant economic impact on a 
substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
IV.A above, this proposed rule would 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 proposed 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

[[Page 50547]]

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 a safety zone that would 
prohibit entry within a 50 yards radius from the center point of the 
Barters Island Bridge during its removal and replacement over an 
approximately two year period. 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 for Categorically Excluded 
Actions 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 https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://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 https://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

    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

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 Sec.  165.T01-0843 to read as follows:


Sec.  165.T01-0843  Safety Zone; Barters Island Bridge, Back River, 
Barters Island, ME.

    (a) Location. The following area is a safety zone: All navigable 
waters on Back River, within a 50-yard radius of the center point of 
the Barters Island Bridge that spans Back River between Barters Island 
and Hodgdon Island in position 43[deg]52'51'' N, 069[deg]40'19'' W (NAD 
83).
    (b) Definitions. As used in this section:
    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) 
Northern New England, 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.
    Official patrol vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP Northern New England to enforce this section.
    (c) Effective and enforcement period. This rule will be effective 
from 12:01 a.m. on December 1, 2018, through 11:59 p.m. on January 31, 
2021, but will only be enforced during operations on replacement of the 
Barters Island Bridge or other instances which may cause which may 
cause a hazard to navigation, or when deemed necessary by the Captain 
of the Port (COTP), Northern New England.
    (d) Regulations. The general regulations contained in 33 CFR 
165.23, as well as the following regulations, apply:
    (1) No person or vessel may enter or remain in this safety zone 
without the permission of the COTP or the COTP's designated 
representative.
    (2) To obtain permission required by this regulation, individuals 
may reach the COTP or the COTP's designated representative via Channel 
16 (VHF-FM) or (207) 741-5465 (Sector Northern New England Command 
Center).
    (3) During periods of enforcement, any person or vessel permitted 
to enter the safety zone shall comply with the directions and orders of 
the COTP or the COTP's designated representative.
    (4) During periods of enforcement, upon being hailed by a U.S. 
Coast Guard vessel by siren, radio, flashing lights, or other means, 
the operator of a vessel within the zone must proceed as directed. Any 
person or vessel within the safety zone shall exit the zone when 
directed by the COTP or the COTP's designated representative.

    Dated: October 2, 2018.
B.J. LeFebvre,
Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New 
England.
[FR Doc. 2018-21868 Filed 10-5-18; 8:45 am]
 BILLING CODE 9110-04-P