[Federal Register: July 1, 2009 (Volume 74, Number 125)]
[Rules and Regulations]
[Page 31369-31372]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy09-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2009-0489]
RIN 1625-AA11
Regulated Navigation Area; Herbert C. Bonner Bridge, Oregon
Inlet, NC
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary regulated
navigation area (RNA) on the waters of Oregon Inlet, North Carolina
(NC). The RNA is needed to protect maritime infrastructure and the
maritime public during fender repair work on the Herbert C. Bonner
Bridge.
DATES: This rule is effective from 8 p.m. on June 22, 2009, through 8
p.m. on July 31, 2009.
ADDRESSES: Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket
are part of docket USCG-2009-0489 and are available online by going to
http://www.regulations.gov, selecting the Advanced Docket Search option
on the right side of the screen, inserting USCG-2009-0489 in the Docket
ID box, pressing Enter, and then clicking on the item in the Docket ID
column. This material is also available for inspection or copying at
two locations: The Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays, and at Coast Guard
Sector North Carolina, 2301 E Fort Macon Rd, Atlantic Beach, NC, 28512,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or e-mail CWO4 Stephen Lyons, Waterways Management
Division Chief, Coast Guard Sector North Carolina; telephone (252) 247-
4525, e-mail Stephen.W.Lyons2@uscg.mil. If you have questions on
viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
[[Page 31370]]
Regulatory Information
The Coast Guard is issuing this temporary final 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)(3)(B), the Coast Guard finds that
good cause exists for not publishing a notice of proposed rulemaking
(NPRM) with respect to this rule because immediate action is needed to
protect bridge repair workers and the maritime public from the hazards
associated with this maintenance project. Fendering system repair
workers will be on scaffolding in the navigation channel underneath the
bridge. Vessels transiting the channel could knock the workers off the
scaffolding and into the water. Likewise vessels could sustain damage
by striking the scaffolding. It is imperative an RNA is established to
complete and finalize the fender repair work on the bridge. Delaying
fendering repair work on the bridge to complete an NPRM is impractical,
unnecessary, and contrary to the public interest. For the safety
concerns noted, it is in the public interest to have this regulation in
place during the construction. In addition, the necessary information
to determine the impact of this construction on the maritime public was
not provided with sufficient time to publish an NPRM. The Coast Guard
received notice from the contractor performing construction on the
bridge that the fender repair work will not be completed by June 5,
2009, as originally planned, due to unforeseen circumstances.
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 would
be contrary to public interest, since immediate action is needed to
ensure the public's safety. It is imperative an RNA is established
immediately during the fender repair work on the bridge.
Background and Purpose
The State of North Carolina Department of Transportation awarded a
contract to Marine Technologies Inc. of Baltimore, MD to perform repair
work on the Herbert C. Bonner Bridge located in Oregon Inlet, NC. The
contract is for the repair of the existing fender system that protects
the bridge piers located on either side of the navigation channel from
vessel allision. The fender repairs began on April 16, 2009 and were
initially scheduled to continue through June 5, 2009. However, the
repairs were not completed by June 5, 2009. The fender repair work will
continue from June 5, 2009, through July 2009. The contractor will
utilize scaffolding hanging from the fender system to perform and
complete the repair work. During periods of work, the scaffolding will
reduce the available horizontal clearance of the main navigational
channel to 124'. Because of this construction, vessels over a certain
size will be limited in their ability to transit the regulated area as
described below.
Discussion of Rule
The RNA will encompass the area of the main navigational channel
directly under the Herbert C. Bonner Bridge. All vessels of 100 gross
tons and greater are not permitted to transit the waterway unless the
vessel asks the District Commander or his representative for permission
to transit. To seek permission to transit the area, mariners can
contact Sector North Carolina at telephone number 252-47-4570.
Any vessel transiting the regulated area must do so at a no-wake
speed during the effective period. Nothing in this proposed rule
negates the requirement to operate at a safe speed as provided in the
Navigational Rules and Regulations.
Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
Although this regulation will restrict access to the regulated
area, the effect of this rule will not be significant because: (i) The
regulated navigation area will be in effect for a limited duration of
time, (ii) the Coast Guard will give advance notification via maritime
advisories so mariners can adjust their plans accordingly, and (iii)
vessels of 100 gross tons or greater may be granted permission to
transit the area by the District Commander or his representative.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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. Although the regulated area will apply to the waters of the
Oregon Inlet, the area will not have significant impact on small
entities because the area will only be in place for a limited duration
of time and maritime advisories will be issued in advance to allow the
public to adjust their plans accordingly.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
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.
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of
[[Page 31371]]
compliance on them. We have analyzed this rule under that Order and
have determined that it does not have implications for federalism.
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 or more in any
one year. Though this rule will not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
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.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
Therefore, this rule is categorically excluded, under section 2.B.
Figure 2-1, paragraph (34)(g), of the Instruction and neither an
environmental assessment nor an environmental impact statement is
required. This rule involves establishing, disestablishing, or changing
a regulated navigation area. An environmental analysis checklist and a
categorical exclusion determination are available in the docket where
indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306,
3307; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add temporary Sec. 165.T05-0489 to read as follows:
Sec. 165.T05-0489 Regulated Navigation Area; Herbert C. Bonner
Bridge, Oregon Inlet, NC.
(a) Definitions. For the purposes of this section:
District Commander means the Commander, Fifth Coast Guard District.
Designated Representative means any Coast Guard commissioned,
warrant, or petty officer who has been authorized by the Commander,
Fifth U.S. Coast Guard District to act as a designated representative
on his behalf.
(b) Location. The following area is a regulated navigation area:
All waters of Oregon Inlet, between the fendered spans of the Herbert
C. Bonner Bridge.
(c) Regulations. (1) The general regulations governing regulated
navigation areas found in Sec. 165.13 of this part apply to the
regulated navigation area described in paragraph (b) of this section.
(2) All vessels of 100 gross tons and greater are not permitted to
transit the regulated area without permission from the District
Commander or his representative. To seek permission to transit the
area, mariners can contact Sector North Carolina at telephone number
(252) 247-4570.
(3) Any vessel transiting the regulated area must do so at a no-
wake speed during the effective period. The Coast Guard vessels
enforcing this section can be contacted on Marine Band Radio, VHF-FM
channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel
by siren, radio, flashing light or other means, the operator of a
vessel shall proceed as directed. If permission is granted, all persons
and vessels must comply with the instructions of the District Commander
or his representative and proceed at the minimum speed necessary to
maintain a safe course while within the zone.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the zone by Federal, State, and local agencies.
(e) Enforcement period. This section will be enforced from 8 p.m.
on June 22, 2009, through 8 p.m. on July 31, 2009, unless cancelled
earlier by the District Commander or designated representative.
[[Page 31372]]
Dated: June 19, 2009.
P.B. Trapp,
Captain, U.S. Coast Guard Acting Commander, Fifth Coast Guard District.
[FR Doc. E9-15577 Filed 6-30-09; 8:45 am]
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