2018-24899. Safety Zone; The Gut, South Bristol, ME

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

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 Gut Bridge in South Bristol, ME between Rutherford Island and Bristol Neck. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created during bedrock removal operations. When enforced, this regulation prohibits entry of vessels or persons into the safety zone unless authorized by the Captain of the Port Northern New England or a designated representative.

DATES:

This rule is effective without actual notice from November 15, 2018 through March 31, 2019. For the purposes of enforcement, actual notice will be used from November 8, 2018 through November 15, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2018-0849 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 on this rule, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

MEDOT Maine Department of Transportation

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background, Purpose, and Legal Basis

On August 21, 2018, the Maine Department of Transportation (MEDOT) notified the Coast Guard that it will be removing bedrock in the areas between Rutherford Island and Bristol Neck underneath The Gut Bridge. The removal operations include removing bedrock from between the bridge abutments and areas near the navigation channel both upstream and downstream of The Gut Bridge. To remove the bedrock workers will need to utilize the waterway underneath the bridge span and prohibit people and vessels from entering the safety zone at various times. Removal operations are expected to take place between 8 November 2018 and 31 March 2019. However, we only anticipate a continuous 35 day full closure of the waterway. The COTP Northern New England has determined that the potential hazards associated with the removal operations will be a safety concern for anyone transiting within a 50-yard radius of the center point of The Gut Bridge.

In response, on September 27, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; The Gut, South Bristol, ME” (83 FR 48748). 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 on October 29, 2018, we received no comments.

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 bedrock removal operations near The Gut Bridge which are scheduled to commence on November 8, 2018.

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 bedrock removal operations will be a safety concern for anyone transiting within a 50-yard radius of the center point of the bridge. The purpose of this rule is to ensure the safety of vessels and personnel within a 50-yard radius of the center point of The Gut Bridge before, during, and after the bedrock removal operations.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published September 27, 2018. 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 November 8, 2018 to 11:59 on March 31, 2019. While the safety zone would be effective throughout this period, it would only be enforced during periods of active bedrock removal operations. The safety zone would include all navigable waters from surface to bottom within a 50 yard radius from the center point of The Gut Bridge between Rutherford Island and Bristol Neck in South Bristol, 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 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 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 size, location, duration, and selective enforcement of the safety zone. The safety zone impacts only a small designated portion on The Gut waterway for 143 days. This waterway is typically transited by small recreational craft on an infrequent basis after Labor Day Weekend and prior to Memorial Day Weekend. Vessel traffic is able to safely transit around this safety zone with a slight delay (approximately 20-60 minutes) by transiting around Rutherford Island to reach any destination on the other side of The Gut. Additionally, the safety zone will only be enforced during active bedrock removal operations necessitating closure of the waterway or during an emergency. Moreover, the rule allows vessels to seek permission to enter the zone. 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 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.

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 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 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 safety zone that would prohibit entry within a 50-yard radius of the center point of a bridge. 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 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 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, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T01-0849 to read as follows:

§ 165.T01-0849

Safety Zone; The Gut, South Bristol, ME.

(a) Location. The following area is a safety zone: All waters of The Gut, a waterway between Rutherford Island and Bristol Neck in South Bristol, ME, from surface to bottom, encompassed by a 50-yard radius from the center point of The Gut Bridge at position 43°51.720′ N, 069°33.480′ W (NAD 83).

(b) Definitions. As used in this section:

Designated representative means any Coast Guard commissioned, warrant, petty officer, or designated Patrol Commander of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector 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 means any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP to enforce this section.

(c) Enforcement period. This rule is effective without actual notice from November 15, 2018 through 11:59 p.m. on March 31, 2019. For the purposes of enforcement, actual notice will be used from 12:01 a.m. on November 8, 2018 through November 15, 2018. The rule will only be enforced during active bedrock removal operations 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. When this safety zone is enforced, the following regulations, along with those contained in § 165.23 apply:

(1) No person or vessel may enter or remain in the safety zone described in paragraph (a) of this section unless authorized by 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 [phone] (Sector Northern New England Command Center).

(3) During periods of enforcement, any person or vessel permitted to enter the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

(e) Penalties. Those who violate this section are subject to the penalties set forth in 33 U.S.C. 1232.

(f) Notification. Coast Guard Sector Northern New England will give notice through the Local Notice to Mariners and Broadcast Notice to Mariners for the purpose of enforcement of temporary safety zone. Coast Guard Sector Northern New England will also notify the public to the greatest extent possible of any period in which the Coast Guard will suspend enforcement of this safety zone.

Dated: November 8, 2018.

B.J. LeFebvre,

Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.