[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Rules and Regulations]
[Pages 63725-63727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25540]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2012-0628]
RIN 1625-AA09


Drawbridge Operation Regulation; Atlantic Intracoastal Waterway 
(AIWW), Newport River, Morehead City, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is temporarily changing the operating schedule 
that governs the Carolina Coastal Railroad Bridge, at AIWW mile 203.8, 
across Newport River in Morehead City, NC. This bridge is presently 
maintained in the open position except when closure is necessary for 
train crossings. This change would allow the bridge to remain closed at 
night so that necessary repairs may be made while still providing for 
the reasonable needs of navigation.

DATES: This temporary final rule is effective from 5 a.m. on October 
17, 2012 to 8:30 p.m. on October 1, 2013.

ADDRESSES: Comments and related materials received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2009-0628 and are available online by 
going to www.regulations.gov, and inserting USCG-2012-0628 in the 
``Keyword'' box, and then clicking ``Search''. 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 rule, 
call or email Terrance A. Knowles, Environmental Protection Specialist, 
Fifth Coast Guard District, at telephone (757) 398-6587, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
U.S.C United States Code

[[Page 63726]]

A. Regulatory History and Information

    On August 10, 2012, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operations; Atlantic Intracoastal Waterway 
(AIWW), Newport River, Morehead City, NC.'' in the Federal Register (77 
FR 47787). We received no comments on the proposed rule. No public 
meeting was requested, and none was held.
    Under 5 U.S.C 553(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. Due to these bridge repairs being 
required and also being a lengthy process, it is best that this work be 
done when there is the least marine activity, such as during the winter 
and night time. Starting the project now will possibly shorten the 2013 
summertime impacts to navigation, depending on expected project tempo/
efficiency. Also, replacement of the obsolete drive system will allow 
for a safer/faster way to close the bridge during approaching 
hurricanes for the 2013 storm season and beyond.

B. Basis and Purpose

    The North Carolina Department of Transportation (NCDOT), who owns 
and operates this bascule-type railroad bridge, has requested a 
temporary change to the existing operating regulations to facilitate 
repairs of existing structural steel, strengthening of the main bascule 
girders and upgrading the obsolete drive system. The current 
regulations, under the general requirements set out at 33 CFR 117.5, 
require that the Carolina Coastal Railroad Bridge, at AIWW mile 203.8, 
across Newport River in Morehead City NC, shall open promptly and fully 
for the passage of vessels when a request to open is given. However, 
the drawbridge is currently maintained in the open to navigation 
position at all times and closes for passing trains.
    In the closed position to vessels, this single-leaf bascule 
drawbridge has a vertical clearance of 4 feet above mean high water.
    To facilitate the required repair work and to minimize the impact 
on navigation, the drawbridge would operate as follows: (1) From 5 a.m. 
October 17, 2012 to 8:30 p.m. on October 1, 2013 shall be maintained in 
the open position to vessels and would only be closed for the passage 
of trains and to perform periodic maintenance; and (2) in the closed 
position to vessels, from 8:30 p.m. to 5 a.m., with one optional 
opening provided at 12 a.m. (midnight) for vessels providing advance 
notice before 4 p.m. on the afternoon before the requested opening.
    Vessel traffic along this part of the Atlantic Intracoastal 
Waterway consists of commercial and pleasure craft including sail 
boats, fishing boats, and tug and barge traffic, that transit mainly 
during the daylight hours with the occasional tug and barge traffic at 
night. The drawbridge is currently maintained in the open to navigation 
position at all times and closes for passing trains. Consequently, the 
number of mariners transiting through this section of the waterway is 
not based on the amount of vessel openings but on the average number of 
waterway users, which showed that there are fewer vessel transits at 
night for mariners, making it a more suitable time to restrict the 
operation of the drawbridge.

C. Discussion of Comments, Changes and the Final Rule

    The Coast Guard provided a comment period of 30 days and no 
comments were received. The Coast Guard would temporarily revise the 
operating regulations at 33 CFR 117.821 by adding a new paragraph (c). 
Paragraph (c) would state from 5 a.m. on October 17, 2012 to 8:30 p.m. 
on October 1, 2013, the draw of the Carolina Coastal Railroad Bridge 
shall be maintained in the open position to vessels, and would only be 
closed for the passage of trains and to perform periodic maintenance; 
and the draw need not open from 8:30 p.m. to 5 a.m., except at 12 a.m. 
(midnight) for vessels providing advance notice before 4 p.m. on the 
afternoon before the requested opening.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Order 12866 or under 
section 1 of Executive Order 13563. The Office of Management and Budget 
has not reviewed it under those Orders.
    The temporary changes are expected to have minimal impact on 
mariners due to the low number of vessels transiting this area at 
night. Also, a midnight vessel opening would be available each night 
for vessels requiring an opening provided that advance notice is given 
by 4 p.m. on the afternoon before the requested opening.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 received no comments from the Small Business 
Administration on this rule. 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 the rule adds navigational 
restrictions mainly to the movement of vessels during a time when there 
is less traffic. Most commercial traffic will leave and return during 
the day. The rule would possibly affect small entities such as owners/
operators of vessels due to limited drawbridge openings from 8:30 p.m. 
to 5 a.m. To minimize delays, these vessels can plan their transits in 
accordance with the proposed opening schedule.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section, above.
    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 Agricultural 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

[[Page 63727]]

about this proposed rule or any policy or action of the Coast Guard.

4. Collection of Information

    This rule would call for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the ``FOR FURTHER 
INFORMATION CONTACT'' section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (adjusted for 
inflation) 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.

8. Taking of Private Property

    This rule would not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. 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.

10. 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.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would 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.

12. 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.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01, and Commandant Instruction M16475.lD 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 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 (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    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; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No. 0170.1.


0
2. In Sec.  117.821, add paragraph (c) to read as follows:


Sec.  117.821  Atlantic Intracoastal Waterway, Albemarle Sound to 
Sunset Beach.

* * * * *
    (c) From 5 a.m. on October 17, 2012 to 8:30 p.m. on October 1, 
2013, the draw of the Carolina Coastal Railroad Bridge, at mile 203.8, 
(Newport River) at Morehead City, shall operate as follows:
    (1) During the day from 5 a.m. to 8:30 p.m., shall be maintained in 
the open position to vessels and would only be closed for the passage 
of trains and to perform periodic maintenance.
    (2) At night, need not open 8:30 p.m. to 5 a.m. except an opening 
would be provided at 12 a.m. (midnight) if advance notice is given 
before 4 p.m. on the afternoon before the requested opening.

    Dated: October 5, 2012.
Lincoln D. Stroh,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 2012-25540 Filed 10-16-12; 8:45 am]
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