[Federal Register Volume 88, Number 195 (Wednesday, October 11, 2023)]
[Rules and Regulations]
[Pages 70360-70363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22340]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0815]
RIN 1625-AA00


Safety Zone; Southport Swing Bridge, Southport, ME

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Townsend Gut within a 50-yard radius from the 
center of the Southport Swing Bridge, in Southport, ME. When enforced, 
this regulation will prohibit waterside entry of vessels or persons 
into the safety zone unless authorized by Captain of the Port for 
Sector Northern New England or a designated representative. The safety 
zone is necessary to protect personnel, vessels, and marine environment 
from potential hazards created by construction and remediation of the 
Southport Swing Bridge.

DATES: This rule is effective from October 23, 2023 through May 17, 
2024. Comments and related material must be received by the Coast Guard 
on or before December 11, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0815 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''
    You may submit comments identified by docket number USCG-2023-0815 
using the Federal Decision-Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFROMATION section below for 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email MSTC Zachary Wetzel, Sector Northern New England, U.S. 
Coast Guard; telephone 207-808-9137, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Northern New England
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On August 29, 2023, the Coast Guard was made aware by the Cianbro 
Companies of the Southport Swing Bridge rehabilitation and construction 
project in Southport, ME, Maine DOT Project WIN 021751.01. Marine 
construction actions will consist of coating repairs, replacement of 
the fender and pier system, full machinery and controls system upgrade, 
deck replacement and a number of structural repairs. During these 
construction activities work and crane barges are expected to block the 
channel and the bridge will be unable to open for vessel traffic. The 
Captain of the Port Sector Northern New England (COTP) has determined 
that potential hazards associated with the bridge construction would be 
a safety concern for anyone within a 50-yard radius of the center point 
of the bridge. If the project is completed prior to May 17, 2024,

[[Page 70361]]

enforcement of the safety zone will be suspended and notice given via 
Broadcast Notice to Mariners, Local Notice to Mariners, or both. The 
Coast Guard anticipates that this safety zone period is the first in a 
several year multi-phase bridge construction and remediation project. 
The Coast Guard will consider comments in issuing a subsequent 
temporary interim rule or temporary final rule.
    The Coast Guard is issuing this temporary interim rule without 
prior notice and opportunity to comment pursuant to authority under 
section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 
553(b)). This provision authorizes an agency to issue a rule without 
prior notice and opportunity to comment when the agency for good cause 
finds that those procedures are ``impracticable, unnecessary, or 
contrary to the public interest.'' Under 5 U.S.C. 553(b)(B), the Coast 
Guard finds that good cause exists for not publishing a notice of 
proposed rulemaking (NPRM) with respect to this rule because doing so 
would be impracticable and contrary to the public interest. The notice 
allowing the construction project to proceed and providing updated 
timelines for the project was only recently finalized and provided to 
the Coast Guard, which did not give the Coast Guard enough time to 
publish a NPRM, take public comments, and issue a final rule before the 
existing regulation expires. Timely action is needed to respond to the 
potential safety hazards associated with the construction and 
rehabilitation the Southport Swing Bridge. It would be impracticable 
and contrary to the public interest to publish a NPRM because we must 
establish the safety zone as soon as possible to protect the safety of 
the waterway users, construction crew, and other personnel associated 
with the bridge project. A delay of the project to accommodate a full 
notice and comment period would delay necessary operations, result in 
increased costs, and delay the completion date of the bridge project 
and subsequent reopening of the Southport Swing Bridge for normal 
operations.
    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. For reasons stated in the 
preceding paragraph, delaying the effective date of this rule would be 
impracticable and contrary to the public interest because timely action 
is needed to respond to the potential safety hazards associated with 
the project.
    We are soliciting comments on this rulemaking. If the Coast Guard 
determines that changes to the temporary interim rule are necessary, we 
will publish a temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

    Coast Guard is issuing this temporary interim rule under authority 
in 46 U.S.C. 70034. The COTP determined that potential hazards 
associated with this bridge construction and remediation project will 
be a safety concern for anyone within the work zone through May 17, 
2024. The construction and remediation of the bridge will be extremely 
complex and present many safety hazards including overhead operations, 
potential falling debris, and barges positioned along the length of the 
bridge. In order to mitigate the inherent risks involved with the 
remediation of a bridge, it is necessary to control vessel movement 
through the area. The purpose of this temporary interim rule is to 
ensure the safety of the waterway users, the public, and construction 
workers for the duration of the bridge construction. In order to 
minimize such unexpected or uncontrolled movement of water no vessel 
may stop, moor, anchor, or loiter within the safety zone at any time 
unless receiving permission from the COTP or a designated 
representative. This temporary interim rule is needed to protect 
personnel, vessels, and the marine environment in the navigable waters 
within the safety zone during the bridge construction project.

IV. Discussion of the Rule

    This temporary interim rule establishes a temporary safety zone 
from October 23, 2023, through May 17, 2024. This rule will prohibit 
all persons and vessel traffic from the safety zone unless exceptions 
are authorized by the COTP or a designated representative.
    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. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866, as amended by 
Executive Order 14094 (Modernizing Regulatory Review). Accordingly, 
this rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. The safety zone 
is only in effect for navigable water of the Townsend Gut within a 50-
yard radius of the center point of the Southport Swing Bridge. This 
waterway is typically transited by smaller craft on an infrequent basis 
over the winter months. Vessel traffic is able to safely transit around 
this safety zone with a slight delay (approximately 30-120 minutes) by 
transiting around Southport Island to reach any destination on the 
other side of Townsend Gut. Additionally, the rule allows vessels to 
seek permission to enter the zone. Moreover, the Coast Guard will 
notify the public of 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 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 the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this temporary interim rule will 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 temporary interim rule. If this rule 
would affect your small

[[Page 70362]]

business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). 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 will 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 does 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 will 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, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321-4370f), and have determined 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 
temporary safety zone that will prohibit entry within a 50-yard radius 
from the center of the Southport Swing Bridge during its construction 
and rehabilitation. 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. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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.

VI. 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.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at http://www.regulations.gov. To do 
so, go to https://www.regulations.gov, type USCG-2023-0815 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. 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.
    Viewing material in docket. To view documents mentioned in this 
rule as being available in the docket, find the docket as described in 
the previous paragraph, and then select ``Supporting & Related 
Material'' in the Document Type column. Public comments will also be 
placed in our online docket and can be viewed by following instructions 
on the https://www.regulations.gov Frequently Asked Questions web page. 
We review all comments received, but we will only post comments that 
address the topic of the rule. We may choose not to post off-topic, 
inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comment we post 
to http://www.regulations.gov will include any personal information you 
have provided. For more about privacy and submissions to the docket in 
response to this document, see DHS's eRulemaking System of Records 
notice (85 FR 14226, March 11, 2020).

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:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T01-0815 to read as follows:


Sec.  165.T01-0815   Safety Zone; Southport Swing Bridge, Southport, 
ME.

    (a) Location. The following area is a safety zone. All navigable 
waters on Townsend Gut within a 50-yard radius from the center of the 
Southport Swing Bridge, in Southport, ME, in position 43[deg]50'33.9'' 
N 69[deg]39'14.4'' W (NAD 83).
    (b) Definitions. As used in this section:
    Designated representative means any Coast Guard commissioned, 
warrant,

[[Page 70363]]

petty officer, or any federal, state, or local law enforcement officer 
who has been designated by the Captain of the Port Northern New England 
(COTP), 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 mean any Coast Guard, Coast 
Guard Auxiliary, state, or local law enforcement vessels assigned or 
approved by the COTP to enforce this section.
    (c) Effective and Enforcement Period. The safety zone in paragraph 
(a) of this section is in effect from October 23, 2023, through May 17, 
2024, and is subject to enforcement 24 hours a day.
    (d) Regulations. When this safety zone is enforced, the following 
regulations, along with those contained in 33 CFR 165.23 apply:
    (1) No person or vessel may enter or remain the safety zone 
described in paragraph (a) without the permission of the COTP or the 
COTP's designated representative. However, any vessel that is granted 
permission to enter or remain in this zone by the COTP or the COTP's 
designated representative must proceed through the zone with caution 
and operate at a speed no faster than that speed necessary to maintain 
a safe course, unless otherwise required by the Navigation Rules.
    (2) 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. 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 shall 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.
    (3) 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).
    (e) Penalties. Those who violate this section are subject to the 
penalties set forth in 46 U.S.C. 70036.

    Dated: October 2, 2023.
Amy Florentino,
Captain, U.S. Coast Guard, Captain of the Port Northern New England.
[FR Doc. 2023-22340 Filed 10-10-23; 8:45 am]
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