[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Rules and Regulations]
[Pages 31369-31372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15577]


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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 [email protected]. 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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