[Federal Register Volume 69, Number 218 (Friday, November 12, 2004)]
[Rules and Regulations]
[Pages 65371-65373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25207]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-189]
RIN 1625-AA09


Drawbridge Operation Regulation: Cape Fear River, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is changing the regulations that govern the 
operation of the Cape Fear River Memorial Bridge, at mile 26.8, in 
Wilmington, NC. This rule allows the bridge to remain in the closed-to-
navigation position from 7:30 a.m. to 11 a.m. on November 14, 2004, to 
facilitate the 7th Annual Battleship NC Half Marathon.

DATES: This rule is effective from 7:30 a.m. to 11 a.m. on November 14, 
2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket CGD05-04-189 and are available for 
inspection or copying at Commander (obr), Fifth Coast Guard District, 
Federal Building, 4th Floor, 431 Crawford Street, Portsmouth, Virginia 
23704-5004 between 8 a.m. and 4:30 p.m., Monday through Friday, except 
Federal holidays. The telephone number is (757) 398-6629. Fifth 
District maintains the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Gary S. Heyer, Bridge Management 
Specialist, Fifth Coast Guard District, at (757) 398-6629.

SUPPLEMENTARY INFORMATION:

Good Cause for Not Publishing a NPRM

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Publishing an NPRM is 
impracticable and contrary to the public interest as the 7th Annual 
Battleship North Carolina Half Marathon is scheduled for November 14th 
and immediate action is necessary to minimize the potential danger to 
the public. The bridge closure is a necessary measure to facilitate 
public safety that allows for the orderly movement of participants and 
vehicular traffic during the marathon.

Good Cause for Making Rule Effective in Less Than 30 days

    Under 5 U.S.C. 533(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective in less than 30 days after 
publication in the Federal Register. A 30-day delayed effective date is 
impracticable and contrary to the public interest as the event is 
scheduled for November 14th and immediate action is necessary to ensure 
public safety and provide for the orderly movement of participants and 
vehicular traffic during the marathon.

Background and Purpose

    NCDOT, who owns and operates this movable (vertical lift-type) 
bridge, requested a temporary change to the operating regulations for 
the Cape Fear River Memorial Bridge in Wilmington NC, to facilitate the 
7th Annual Battleship NC Half Marathon. The marathon is an annual 
event, attracting participants from the surrounding cities and states.
    The existing regulations are outlined at 33 CFR 117.5, which 
requires the bridge to open on signal. The bridge has vertical 
clearances in the closed and full open positions to vessels of 65 feet 
and 135 feet at mean high water, respectively.
    The Coast Guard has informed vessel operators with mast height 
greater than 65 feet of the closure period for the bridge so that these 
vessels can arrange their transits to minimize impact during the 
marathon. Vessels with mast heights lower than 65 feet still can 
transit through the drawbridge across Cape Fear River during this event 
since the drawbridge is closed not the waterway.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    This conclusion was based on the fact that this rule will have 
minimal impact on maritime traffic transiting this area. Since Cape 
Fear River will remain open to navigation during this event,

[[Page 65372]]

mariners with mast height less than 65 feet may still transit through 
the bridge and vessels with mast heights greater than 65 feet can 
transit after the closed hours.

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.
    This rule will not have a significant economic impact on a 
substantial number of small entities because even though the rule 
closes the Cape Fear River Memorial Bridge to mariners, those with mast 
heights less than 65 feet will still be able to transit through the 
bridge during the closed hours and mariners whose mast heights are 
greater than 65 feet will be able to transit after the closed hours.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.
    Small businesses may send comments on this action of Federal 
employee 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).

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 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 an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 would not create an 
environmental risk to health or risk to safety that might 
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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. 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 Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (32)(e) of the Instruction, from further 
environmental documentation.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; Department of Homeland Security 
Delegation No. 0170.1; 33

[[Page 65373]]

CFR 1.05-1(g); section 117.255 also issued under the authority of 
Pub. L. 102-587, 106 Stat. 5039.

0
2. Add temporary Sec.  117.T824 to read as follows:


Sec.  117.T824  Cape Fear River.

    From 7:30 a.m. to 11 a.m. on November 14, 2004, the Cape Fear River 
Memorial Bridge, mile 26.8 at Wilmington, may remain closed to 
navigation.

    Dated: November 1, 2004.
Sally Brice-O'Hara,
Rear Admiral, U. S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 04-25207 Filed 11-10-04; 8:45 am]
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