[Federal Register Volume 74, Number 137 (Monday, July 20, 2009)]
[Rules and Regulations]
[Pages 35120-35122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17097]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0565]
RIN 1625-AA00


Safety Zone; Atlantic Intracoastal Waterway, Oak Island, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the Atlantic Intracoastal Waterway at Oak Island, North 
Carolina. The safety zone is necessary to provide for the safety of 
life on navigable waters during the installation of bridge girders at 
the new high-level fixed highway bridge at the second crossing to Oak 
Island, North Carolina.

DATES: This rule is effective from 7 a.m. on July 22, 2009 through 5:30 
p.m. on August 12, 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-2009-0565 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-2009-0565 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 
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.

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:

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 the maritime public from the hazards associated with the 
installation of bridge girders, including the use of heavy equipment 
and falling debris. The necessary information to determine whether the 
installation project posed a threat to persons and vessels was not 
provided with sufficient time to publish an NPRM. For the safety 
concerns noted, it is in the public interest to have this regulation in 
place during the girder installation.
    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 from the hazards noted above.

[[Page 35121]]

Background and Purpose

    The State of North Carolina Department of Transportation awarded a 
contract to Lee Construction Company of the Carolinas, Inc. of 
Charlotte, North Carolina, to perform bridge girder installation at the 
new high-level fixed highway bridge at the second crossing to Oak 
Island, North Carolina. The contract provides for the installation of 8 
bridge girders. The center bridge girder installation is scheduled to 
begin on July 22, 2009 through July 29, 2009 between the hours of 7 
a.m. to 5:30 p.m. each day. The contractor will be utilizing a deck 
barge with a 55' beam, a 450 ton ringer crane on a stationary barge 
with an 85' beam, and assist tug to conduct the girder installation. 
This operation presents a potential hazard to mariners from falling 
debris and the use of heavy equipment and machinery. To provide for the 
safety of the public, the Coast Guard will temporarily restrict access 
to this section of the Atlantic Intracoastal Waterway during girder 
installation.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone to 
encompass the waters of the Atlantic Intracoastal Waterway extending 
250 yards in all directions from the main construction site. All 
vessels are prohibited from transiting this section of the waterway 
while the safety zone is in effect. Entry into the zone will not be 
permitted except as specifically authorized by the Captain of the Port 
or a designated representative. To seek permission to transit the area, 
mariners can contact Sector North Carolina at telephone number (252) 
247-4570. This zone will be enforced from 7 a.m. to 5:30 p.m. each day, 
from July 22, 2009 through August 12, 2009. The enforcement period is 
scheduled to run longer than the planned operation to account for any 
delays in construction. The Captain of the Port may cancel enforcement 
of the safety zone if construction is completed before August 12.

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 area, the 
effect of this rule will not be significant because: (i) The safety 
zone 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 may be 
granted permission to transit the area by the Captain of the Port or a 
designated 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. This rule will effect the following entities, some of which 
may be small entities: the owners or operators of tug and barge, 
recreational, and fishing vessels intending to transit the specified 
portion of the Atlantic Intracoastal Waterway from 7 a.m. to 5:30 p.m. 
beginning July 22, 2009 through August 12, 2009.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will be in effect for only a limited time each day. Although the 
safety zone will apply to the entire width of the Atlantic Intracoastal 
Waterway, vessel traffic can use alternate waterways to transit safely 
around the safety zone. Before the effective period, the Coast Guard 
will issue maritime advisories widely available to the users of the 
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).

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 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.
    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.

[[Page 35122]]

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. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule establishes a temporary safety 
zone to protect the public from bridge construction operations. 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--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 and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T05-0565 to read as follows:


Sec.  165.T05-0565   Safety Zone; Atlantic Intracoastal Waterway, Oak 
Island, NC.

    (a) Definitions. For the purposes of this section, Captain of the 
Port means the Commander, Sector North Carolina. Representative means 
any Coast Guard commissioned, warrant, or petty officer who has been 
authorized to act on the behalf of the Captain of the Port.
    (b) Location. The following area is a safety zone: This zone 
includes the waters of the Atlantic Intracoastal Waterway extending 250 
yards in all directions from the main construction site at the new 
high-level fixed highway bridge at the second crossing to Oak Island, 
North Carolina.
    (c) Regulations. (1) The general regulations contained in Sec.  
165.23 of this part apply to the area described in paragraph (b) of 
this section.
    (2) Persons or vessels requiring entry into or passage through any 
portion of the safety zone must first request authorization from the 
Captain of the Port, or a designated representative, unless the Captain 
of the Port previously announced via Marine Safety Radio Broadcast on 
VHF Marine Band Radio channel 22 (157.1 MHz) that this regulation will 
not be enforced in that portion of the safety zone. The Captain of the 
Port can be contacted at telephone number (252) 247-4570 or by radio on 
VHF Marine Band Radio, channels 13 and 16.
    (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 7 a.m. 
to 5:30 p.m. each day from July 22, 2009 through August 12, 2009, 
unless cancelled earlier by the Captain of the Port.

    Dated: June 24, 2009.
J.E. Ryan,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. E9-17097 Filed 7-17-09; 8:45 am]
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