[Federal Register Volume 83, Number 235 (Friday, December 7, 2018)]
[Rules and Regulations]
[Pages 63059-63061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26578]
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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: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary 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. The safety zone is necessary
to protect personnel, vessels, and the marine environment from
potential hazards which could pose as imminent hazard to persons and
vessels operating in the area created by the demolition, subsequent
removal, and replacement of the Barters Island Bridge and a temporary
bridge. When enforced, persons and vessels are prohibited 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.
DATES: This rule is effective without actual notice from December 7,
2018 through January 31, 2021. For the purposes of enforcement, actual
notice will be used from December 1, 2018 through December 7, 2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0843 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
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
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 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.
On October 9, 2018, the Coast Guard published a notice of proposed
rulemaking (NPRM) titled ``Safety Zones; Barters Island Bridge, Back
River, Barters Island, ME'' (83 FR 50545). There we stated why we
issued the NPRM, and invited comments on our proposed regulatory action
related to this safety zone. During the comment period that ended
November 8, 2018, we received one comment.
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. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
respond to the potential safety hazards associated with demolition,
subsequent removal, and replacement of the Barters Island Bridge and a
temporary bridge.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP Northern New England has determined that potential
hazards associated with the demolition, subsequent removal, and
replacement of the Barters Island Bridge and a temporary bridge will be
a safety concern for anyone transiting within a 50 yard radius of the
center point of the Barters Island Bridge. The purpose of this rule is
to ensure safety of vessels and the navigable waters in the safety zone
before, during, and after the bridge demolition, removal, and
replacement. During times of enforcement, no vessel or person would be
permitted to enter the safety zone without obtaining permission from
the COTP Northern New England or a designated representative.
[[Page 63060]]
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received one comment on our NPRM published
October 9, 2018. The comment was not related to this rulemaking nor
does it fall within the scope of this rulemaking. There are no changes
in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a safety zone from 12:01 a.m. on December 1,
2018 through 11:59 p.m. on January 31, 2021. While the safety zone
would be effective throughout this period, it would only be enforced
during operations on replacement of the Barters Island Bridge. The
safety zone would include all navigable waters from surface to bottom
within a 50 yard radius from the center point of the Barters Island
Bridge on the Back River, ME. During times of enforcement, no vessel or
person would be permitted to enter the safety zone without obtaining
permission from the COTP Northern New England or a designated
representative. The duration of the zone is intended to ensure the
safety of vessels and these navigable waters before, during, and after
operations on replacement of the Barters Island Bridge. 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.
V. Regulatory Analyses
We developed this 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 rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the 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 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 received no comments from the Small Business
Administration on this rulemaking. The Coast Guard certifies under 5
U.S.C. 605(b) that this 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 rule would not have a significant economic impact on
any vessel owner or operator.
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 rule or any policy or action of the
Coast Guard.
C. Collection of Information
This 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 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 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 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 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 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 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. It is 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
[[Page 63061]]
Record of Environmental Consideration supporting this determination is
available in the docket where indicated under ADDRESSES.
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.
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. 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 is effective
without actual notice from December 7, 2018 through 11:59 p.m. on
January 31, 2021. For the purposes of enforcement, actual notice will
be used from 12:01 a.m. on December 1, 2018 through December 7, 2018.
This rule will only be enforced during operations on replacement of the
Barters Island Bridge or other instances 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 Sec. 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: November 30, 2018.
B.J. LeFebvre,
Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New
England.
[FR Doc. 2018-26578 Filed 12-6-18; 8:45 am]
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