[Federal Register Volume 74, Number 214 (Friday, November 6, 2009)]
[Rules and Regulations]
[Pages 57415-57418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26772]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0956]
RIN 1625-AA00


Safety Zone; SR 90 Bridge, Assawoman Bay, Isle of Wight and Ocean 
City, MD

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on 
Assawoman Bay in the vicinity of the SR 90 Bridge (Ocean City 
Expressway) that connects Isle of Wight and Ocean City, MD. This action 
will protect mariners and public property on Assawoman Bay from the 
hazards associated with possible falling debris from the channel span 
superstructure and facilitates expeditious repairs to the

[[Page 57416]]

span by allowing the contracted company to maintain their position 
inside the main channel. Vessel traffic will be redirected to an 
alternative channel during the effective period.

DATES: This rule is effective from 12:01 a.m. October 22, 2009 through 
11:59 p.m. December 31, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0956 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0956 in the 
``Keyword'' box, and then clicking ``Search.'' They are 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 LT Tiffany Duffy, United States Coast 
Guard Sector Hampton Roads Waterways Management Division; telephone 
757-668-5580, 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)(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 provide 
for the safety of life and property on navigable waters.
    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 the public interest because the dilapidated condition of 
the channel span superstructure could lead to severe injury, 
fatalities, and/or destruction of public property; therefore, immediate 
action is needed to ensure public safety.

Background and Purpose

    Coast Guard Sector Hampton Roads has been notified by Maryland 
Department of Transportation State Highway Administration that 
immediate repairs are required on the channel span superstructure of 
the SR 90 Bridge over Assawoman Bay. During the period of repair, 
vessel traffic through the main channel will be restricted and 
redirected to transit under the bridge span immediately west of the 
main span. Due to the need to protect mariners and spectators from the 
hazards associated with repair operations, access to all waters of 
Assawoman Bay within the 900 foot radius of the main channel of the SR 
90 Bridge will be closed to navigation. Hazards associated with repair 
operations include, but are not limited to, the presence of heavy 
machinery used to fix the main channel span and the potential for 
falling objects or debris caused by vehicular traffic travelling over 
the dilapidated portion of the main channel span.

Discussion of Rule

    The Coast Guard is establishing a safety zone on the specified 
waters of Assawoman Bay in the vicinity of Isle of Wight and Ocean 
City, Maryland. This safety zone will encompass all navigable waters of 
Assawoman Bay within 900 foot radius of approximate position 
38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983). All traffic will be 
redirected to navigable waters immediately adjacent to and west of the 
main channel span structure by private aids to navigation pre-
positioned at approximate positions 38[deg]23'17'' N, 075[deg]5'34'' W; 
38[deg]23'17'' N, 075[deg]5'33'' W; 38[deg]23'24'' N, 075[deg]5'33'' W; 
38[deg]23'23'' N, 075[deg]5'32'' W; 38[deg]23'17'' N, 075[deg]5'33'' W; 
and 38[deg]23'24'' N, 075[deg]5'33'' W (NAD 1983) and by bridge 
navigation lights. The safety zone will be established in the interest 
of public safety during the repair of the SR 90 Bridge (Ocean City 
Expressway) channel span superstructure and will be enforced from 12:01 
a.m. October 22, 2009 through 11:59 p.m. December 31, 2009. No person 
or vessel may enter or remain in the safety zone unless authorized by 
the Captain of the Port or his Representative. Vessels will be allowed 
to transit around the safety zone, under the bridge span immediately 
west of the main span. Notification of the safety zone will be provided 
to the public via marine information broadcasts.

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 proposed regulation restricts access to the safety 
zone, the effect of this rule will not be significant because: (i) The 
safety zone will be in effect during less-traveled times of the year; 
(ii) the zone is of limited size; (iii) there is an alternative channel 
for vessels to transit; and (iv) the Coast Guard will make 
notifications via maritime advisories so mariners can adjust their 
plans accordingly. For those reasons, the Coast Guard does not 
anticipate any significant economic impact.

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 the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit or anchor Assawoman Bay in the vicinity of the SR 90 Bridge 
(Ocean City Expressway) from 12:01 a.m. October 22, 2009 until 11:59 
p.m. December 31, 2009. This safety zone will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons: (1) The safety zone will only be in place during 
less-traveled times of the year; (2) before the effective period, 
maritime advisories will be issued allowing mariners to adjust their 
plans accordingly; (3) although the safety zone will apply to

[[Page 57417]]

all navigable waters of Assawoman Bay within a 900 feet radius of 
approximate position 38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983), 
vessel traffic will be allowed to pass through the zone with the 
permission of the Captain of the Port or his Representative; and (4) 
there is an alternative channel for vessels to transit.

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 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 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 involves establishing a safety 
zone. This safety zone introduces no additional hazards to the 
environment while ensuring that life and property are protected during 
repair operations of the channel span superstructure. 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 AND LIMITED ACCESS 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, 
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 Sec.  165.T05-0956 to read as follows:


Sec.  165.T05-0956  Safety Zone; SR 90 Bridge, Assawoman Bay, Isle of 
Wight and Ocean City, MD.

    (a) Location. The following area is a safety zone: Specified waters 
of Assawoman Bay within 900 foot radius of approximate position 
38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983)., in the

[[Page 57418]]

vicinity of Isle of Wight and Ocean City, MD.
    (b) Definitions. As used in this section, designated representative 
means any U.S. Coast Guard commissioned, warrant or petty officer who 
has been authorized by the Captain of the Port, Hampton Roads, Virginia 
to act on his behalf.
    (c) Regulations. (1) In accordance with the general regulations in 
165.23 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port, Hampton Roads or his designated 
representatives.
    (2) The operator of any vessel in the immediate vicinity of this 
safety zone must:
    (i) Stop the vessel immediately upon being directed to do so by any 
commissioned, warrant or petty officer on shore or on board a vessel 
that is displaying a U.S. Coast Guard Ensign.
    (ii) Proceed as directed by any commissioned, warrant or petty 
officer on shore or on board a vessel that is displaying a U.S. Coast 
Guard Ensign.
    (3) The Captain of the Port, Hampton Roads can be reached through 
the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia 
at telephone number (757) 638-6641.
    (4) The Coast Guard Representatives enforcing the safety zone can 
be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and 
channel 16 (156.8 Mhz).
    (d) Enforcement Period: This regulation will be in effect from 
October 22, 2009 through December 31, 2009.

    Dated: October 22, 2009.
M.S. Ogle,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.

[FR Doc. E9-26772 Filed 11-5-09; 8:45 am]
BILLING CODE 4910-15-P