[Federal Register Volume 83, Number 91 (Thursday, May 10, 2018)]
[Rules and Regulations]
[Pages 21717-21719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09958]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0964]
RIN 1625-AA00


Safety Zone; Oregon Inlet, Dare County, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is re-establishing and extending a temporary 
final rule that creates a temporary safety zone on the waters of Oregon 
in Dare County, NC. The duration of this safety zone is extended 
through June 15, 2018. This safety zone is needed to protect personnel, 
vessels, and the marine environment from the hazards associated with 
installing the navigation span and will restrict vessel traffic from 
the bridge's navigation span as it is under construction by preventing 
vessel traffic on a portion of Oregon Inlet. Entry of vessels or 
persons into this safety zone is prohibited.

DATES: This rule is effective without actual notice from May 10, 2018 
until June 15, 2018. For the purposes of enforcement, actual notice 
will be used from May 4, 2018, until May 10, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0964 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Matthew Tyson, Waterways Management 
Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC; 
telephone: (910) 772-2221, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port

II. Background Information and Regulatory History

    On October 10, 2017, the North Carolina Department of 
Transportation notified the Coast Guard that they

[[Page 21718]]

would be installing the navigation span of the new Herbert C. Bonner 
Bridge in Oregon Inlet, Dare County, North Carolina on January 29 
through March 24, 2018, with alternate dates of March 25 through May 6, 
2018. In response, following publication of an NPRM and solicitation of 
public comments, on January 1, 2018, the Coast Guard published a final 
rule establishing a temporary safety zone effective from January 29, 
2018 through March 24, 2018, 83 FR 2910 with alternate dates of March 
25, 2018 through May 6, 2018. Due to inclement weather and material 
delays the project has been delayed and the project completion date has 
been extended through June 15, 2018. The COTP North Carolina has 
determined that potential safety hazards associated with the 
construction will be a concern for anyone transiting the Oregon Inlet 
navigation channel.
    The Coast Guard is issuing this temporary rule to re-establish and 
extend the duration of the temporary safety zone 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 notification of the need to extend 
the safety zone was not given to the Coast Guard until April 26, 2018. 
It is impracticable and contrary to the public interest to publish an 
NPRM because we must extend the safety zone immediately through June 
15, 2018, to protect personnel, vessels, and the marine environment on 
the navigable waters in Oregon Inlet during this construction phase.
    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 of 
this rule would be impracticable and contrary to the public interest 
because immediate action is needed to protect persons, vessels, and the 
marine environment on the navigable waters in Oregon Inlet during this 
construction phase.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP North Carolina has determined that potential safety 
hazards associated with the construction will be a concern for anyone 
transiting the Oregon Inlet navigation channel. The purpose of this 
rule is to protect persons, vessels, and the marine environment on the 
navigable waters in Oregon Inlet during this construction phase.

IV. Discussion of the Rule

    This rule re-establishes and extends the effective dates of the 
rule, published in 83 FR 2910, by 40 days making it effective through 
June 15, 2018. Construction is expected to take place on 33 separate 
days during this construction period. The safety zone will be active 
for two hours each day, with the exact times announced via Broadcast 
Notices to Mariners at least 48 hours prior to enforcement. The safety 
zone will include all navigable waters of Oregon Inlet from approximate 
position 35[deg]46'23'' N, 75[deg]32'18'' W, thence southeast to 
35[deg]46'18'' N, 75[deg]32'12'' W, thence southwest to 35[deg]46'16'' 
N, 75[deg]32'16'' W, thence northwest to 35[deg]46'20'' N, 
75[deg]32'23'' W, thence northeast back to the point of origin, (NAD 
1983). This zone is intended to protect persons, vessels, and the 
marine environment on the navigable waters in Oregon Inlet during this 
construction phase. No vessel or person will be permitted to enter the 
safety zone during the designated times.

V. 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 and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, and duration of the proposed safety zone. Vessel traffic will 
not be allowed to enter or transit a portion of Oregon Inlet during 
specific two hour periods on 33 separate days from January 29 through 
June 15, 2018. The specific two hour period for each work day will be 
broadcasted at least 48 hours in advance and vessels will be able to 
transit Oregon Inlet at all other times. The Coast Guard will issue a 
Local Notice to Mariners and transmit a Broadcast Notice to Mariners 
via VHF-FM marine channel 16 regarding the safety zone. This portion of 
Oregon Inlet has been determined to be a medium to low traffic area at 
this time of the year. This rule does not allow vessels to request 
permission to enter the safety zone covering a portion of the Oregon 
Inlet navigation channel during the designated times.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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.
    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

[[Page 21719]]

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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    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 is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

E. 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 an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, which guides the Coast Guard in complying with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and 
have determined that this action is one of a category of actions that 
do not individually or cumulatively have a significant effect on the 
human environment. This rule involves a safety zone lasting for two 
hours on 33 separate days that would prohibit entry into a portion of 
Oregon Inlet for bridge construction. It is categorically excluded from 
further review under paragraph L60(a) of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental 
Consideration supporting this determination is available in the docket 
where indicated under ADDRESSES.

G. 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T05-0964 to read as follows:


Sec.  165.T05-0964   Safety Zone; Oregon Inlet, Dare County, NC.

    (a) Location. The following area is a safety zone: All navigable 
waters of Oregon Inlet, from approximate position 35[deg]46'23'' N, 
75[deg]32'18'' W, thence southeast to 35[deg]46'18'' N, 75[deg]32'12'' 
W, thence southwest to 35[deg]46'16'' N, 75[deg]32'16'' W, thence 
northwest to 35[deg]46'20'' N, 75[deg]32'23'' W, thence northeast back 
to the point of origin (NAD 1983) in Dare County, NC.
    (b) Definitions. As used in this section--
    Captain of the Port means the Commander, Sector North Carolina.
    Construction crews means persons and vessels involved in support of 
construction.
    Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard commissioned, warrant, or petty officer 
designated by the Captain of the Port North Carolina (COTP) for the 
enforcement of the safety zone.
    (c) Regulations. (1) The general regulations governing safety zones 
in Sec.  165.23 apply to the area described in paragraph (a) of this 
section.
    (2) With the exception of construction crews, entry into or 
remaining in this safety zone is prohibited.
    (3) All vessels within this safety zone when this section becomes 
effective must depart the zone immediately.
    (4) The Captain of the Port, North Carolina can be reached through 
the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, 
North Carolina at telephone number 910-343-3882.
    (5) The Coast Guard and designated security vessels 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. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement period. This regulation will be enforced from May 4 
through June 15, 2018.
    (f) Public notification. The Coast Guard will notify the public of 
the specific two hour closures at least 48 hours in advance by 
transmitting Broadcast Notice to Mariners via VHF-FM marine channel 16.

    Dated: May 4, 2018.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2018-09958 Filed 5-9-18; 8:45 am]
 BILLING CODE 9110-04-P