[Federal Register Volume 73, Number 227 (Monday, November 24, 2008)]
[Rules and Regulations]
[Pages 70868-70871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27844]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1081]
RIN 1625-AA00


Safety Zone: Oregon Inlet, North Carolina, Dredge Project

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone around 
the Dredge R.S. Weeks during dredging operations in Oregon Inlet, North 
Carolina. This safety zone will enhance the safety of vessels 
transiting Oregon Inlet, North Carolina during periods of dredging 
operations. This project is being undertaken to increase the water 
depth in Oregon Inlet, North Carolina to 14 feet. Entry into the safety 
zone is prohibited unless authorized by the Captain of the Port, North 
Carolina.

DATES: This rule is effective from 8 a.m. on November 7, 2008 through 5 
p.m. November 30, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-1081 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-2008-1081 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are 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 the United 
States Sector North Carolina, 2301 East Fort Macon Road, Atlantic 
Beach, North Carolina 28512 between 8 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call CWO4 Stephen Lyons, Waterways Management Division 
Chief, Sector North Carolina, at (252) 247-4570. If you have questions 
on viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

[[Page 70869]]

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)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the publishing of an NPRM would be 
impracticable and contrary to public interest since immediate action is 
needed to protect the maritime public form the hazards associated with 
the dredge project in Oregon Inlet, North Carolina.
    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.

Background and Purpose

    Due to the dynamic nature of Oregon Inlet, near continuous dredging 
and frequent realignment of the approach channel east of the Herbert C. 
Bonner Bridge have become routine. Passage of tropical storms and 
strong low pressure systems accelerate the shoaling and need for 
maintenance dredging. The Federal Navigation Project is maintained by 
the U.S. Army Corps of Engineers (USACE) through the employment of 
USACE assets or by contracts issued and administered by the USACE. The 
Army Corps of Engineers has contracted Weeks Marine Inc. of Covington, 
LA to perform maintenance dredging in Oregon Inlet, NC. The contractor 
will be utilizing the 280 foot hydraulic Dredge R.S. Weeks. The dredge 
has a 65 foot beam and uses a 30 inch diameter 1600 foot floating 
discharge line that will be connected to a submerged shore connection. 
During periods of operation the dredge may reduce the available 
horizontal clearance of Oregon Inlet by 1880 feet and may entirely 
obstruct the navigational channel to vessel traffic. Vessel use of the 
alternate spans will not be sanctioned by the Coast Guard because the 
alternate spans are not clearly marked by navigational aids. In 
addition, due to concerns about the structural integrity of the bridge, 
potential vessel strikes, and the absence of a fender system in the 
alternate spans, the only safe passage for vessels is through the main 
navigational span.

Discussion of Rule

    This safety zone is necessary to safeguard mariners from the 
hazards associated with dredging on the waters of Oregon Inlet, North 
Carolina. This regulation establishes a 100 yard moving safety zone on 
the waters of Oregon Inlet around the perimeter of the Dredge R.S. 
Weeks during dredging operations. In addition, it establishes a 50 yard 
safety zone around the perimeter of the floating discharge line which 
leads from the dredge to the submerged shore connection. Entry into 
these zones will be prohibited unless authorized by the Captain of the 
Port.
    Alternate routes for any vessel wishing to transit through Oregon 
Inlet include traveling through Hatteras Inlet, Beaufort Inlet, or 
through the Atlantic Intracoastal Waterway.
    Law enforcement, aids to navigation, and other waterway maintenance 
vessels are specifically exempt from this regulation.
    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 Oregon Inlet, the 
effect of this rule will not be significant because: (i) The safety 
zones only restrict vessels during dredging operations; (ii) the Coast 
Guard will make extensive notifications of the safety zone to the 
maritime public via maritime advisories so mariners can adjust their 
plans accordingly; (iii) the safety zones will be in effect for a 
limited duration of time; and (iv) mariners will have alternate routes 
to transit through Oregon Inlet, including traveling through Hatteras 
Inlet, Beaufort Inlet, or through the Atlantic Intracoastal Waterway.

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 affect vessels intending to transit on the waters of 
Oregon Inlet, North Carolina from 8 a.m. on November 7, 2008 through 5 
p.m. on November 30, 2008. Although the safety zones will apply to the 
waters of the Oregon Inlet the zones will not have significant impact 
on small entities because the safety zones only restrict vessels during 
dredging operations, the Coast Guard will make extensive notifications 
of the safety zone to the maritime public via maritime advisories so 
mariners can adjust their plans accordingly, the safety zones will be 
in enforced for a limited duration of time, and mariners will have 
alternate routes to transit through Oregon Inlet, including traveling 
through Hatteras Inlet, Beaufort Inlet, or through the Atlantic 
Intracoastal Waterway.

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).

[[Page 70870]]

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 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 5100.1 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 
under the Instruction 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 (34)(g), of the Instruction, from further 
environmental documentation. 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 set out in the preamble, the Coast Guard amends 33 CFR 
part 165 as follows:

PART 165--SAFETY ZONES

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, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T05-1081 to read as follows:


Sec.  165.T05-1081  Safety Zone; Oregon Inlet, NC.

    (a) Definitions. Captain of the Port Representative means the 
Commander, Sector North Carolina, or any Coast Guard commissioned, 
warrant, or petty officer who has been authorized to act on the Captain 
of the Port's behalf.
    (b) Location. The following area is a safety zone: Waters of Oregon 
Inlet within 100 yards of the Dredge R.S. Weeks and within 50 yards of 
the floating discharge line.
    (c) Regulations. (1) The general regulations governing safety zones 
found in Sec.  165.23 of this part apply to the safety zone described 
in paragraph (b) of this section.
    (2) In accordance with the general regulations in section 165.23 of 
this part, entry into these safety zones is prohibited unless 
authorized by the Captain of the Port or a Captain of the Port 
Representative. All vessel movement within the safety zones is 
prohibited except as specifically authorized by the Captain of the Port 
or a Captain of the Port Representative.
    (3) This section applies to all vessels operating within the safety 
zone except vessels that are engaged in the following operations:
    (i) Enforcing laws;
    (ii) Servicing aids to navigation; and
    (iii) Surveying, maintaining or improving waters in the safety 
zone.
    (4) Any deviation from paragraph (c)(2) of this section due to 
extreme circumstances must be authorized by the Captain of the Port or 
a Captain of the Port representative. Vessels granted permission to 
transit must do so in accordance with the directions provided by the 
Captain of the Port or a Captain of the Port representative to that 
vessel. To seek permission to transit the area, the Captain of the Port 
can be contacted at telephone number (252) 247-4570.
    (5) Due to continual shoaling in Oregon Inlet, all vessels should 
use caution while transiting the area. Mariners are advised to view the 
latest U.S. Army Corps of Engineers survey

[[Page 70871]]

data prior to attempting to transit the area. Mariners can view the 
survey at http://www.saw.usace.army.mil/nav/OREGON.htm.
    (6) Mariners are reminded that the fendered span of the Herbert C. 
Bonner Bridge is the only recommended route for passing under the 
bridge. Passing through any unfendered span presents a significant 
hazard to the vessel and the bridge.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the regulated navigation area by Federal, State, and 
local agencies.
    (e) Enforcement period. This section will be enforced from 8 a.m. 
November 7, 2008, through 5 p.m. November 30, 2008.

    Dated: November 7, 2008.
J.E. Ryan,
Captain, U.S. Coast Guard, Captain of the Port, North Carolina.
[FR Doc. E8-27844 Filed 11-21-08; 8:45 am]
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