[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]
 BILLING CODE 9110-04-P