[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Rules and Regulations]
[Pages 40725-40727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14558]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0466]
RIN 1625-AA11


Regulated Navigation Area; Oregon Inlet Channel, Marc Basnight 
Bridge, Dare County, NC

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary regulated 
navigational area (RNA) for navigable waters of Oregon Inlet Channel. 
Due to severe shoaling in the Oregon Inlet Channel, the navigational 
channel will be moved until shoaling can be mitigated by dredging 
crews. The new, temporary, channel through the Marc Basnight Bridge may 
not be suitable for vessels of 100 gross tons (GT) or greater. This 
temporary RNA is needed to protect personnel, vessels, bridge 
infrastructure, and the marine environment from potential hazards 
associated with the transit of vessels 100 GT or greater until the 
original channel can be restored. Transit of vessels 100 GT or greater 
through this area is prohibited unless specifically authorized by the 
Captain of the Port (COTP) North Carolina or designated representative.

DATES: This rule is effective without actual notice from July 8, 2022, 
through June 30, 2023. For purposes of enforcement, actual notice will 
be used from July 5, 2022, until July 8, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0466 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Ken Farah, Waterways Management Division, 
U.S. Coast Guard; telephone 910-772-2221, email 
[email protected].

[[Page 40726]]


SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 it is impracticable due to the safety 
hazard associated with the extreme shoaling in this area and shifiting 
of the main navigational channel. The potential safety hazards 
associated with vessels 100 GT or greater transiting this span of the 
Marc Basnight Bridge must be mitigated until the original channel can 
be restored. It is impracticable to publish an NPRM and consider the 
public comments because we must establish this temporary RNA 
immediately in order to address significant shoaling, and protect 
vessels, infrastructure, and the marine environment.
    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 contrary to public interest because immediate action 
is needed to restrict the transit of vessels of 100 GT or greater 
through this dangerous span of the Marc Basnight Bridge.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The District 5 Commader has 
determined that potential hazards associated with vessels 100 GT or 
greater transiting the Marc Basnight Bridge in the new, temporary, 
Oregon Inlet Channel will be a safety concern to the public. This rule 
is needed to protect personnel, vessels, bridge infrastructure, and the 
marine environment until the original channel is restored.

IV. Discussion of the Rule

    This rule establishes a temporary regulated navigational area for 
navigable waters of Oregon Inlet Channel until the original Oregon 
Inlet Channel is restored. Due to severe shoaling at Oregon Inlet 
Channel, Aids to Navigation Team (ANT) Wanchese established a new 
channel which passes from the Oregon Inlet Entrance Channel through 
Marc Basnight Bridge temporary navigable span 34 to the west side of 
the bridge. The original Oregon Inlet Channel crossing under the Marc 
Basnight Bridge (NC-12) at spans 23-31 has been relocated north-west to 
span 34, between bents 33 and 34. This temporary span provides vertical 
clearance of approximately 37 feet above mean high water and a 
horizontal clearance of approximately 146 feet. However, this section 
of the bridge is not equipped with fenders to protect the spans from 
potential vessel allisisions. This necessicates the restriction of 
vessels transiting under this portion of the Marc Basnight Bridge. 
Vessels of 100 GT or greater may present a significant hazard to this 
section of the bridge. This temporary RNA will be in place until U.S. 
Army Corps of Engineers (USACE) crews completes the dredging of the 
original Oregon Inlet Channel.
    This temporary navigational restriction is needed to protect 
personnel, vessels, bridge infrastructure, and the marine environment 
from potential hazards associated with the transit of vessels 100 GT or 
greater until the original Oregon Inlet Channel can be restored. The 
duration of the zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters while the original channel 
is being restored. No vessels 100 GT or greater will be permitted to 
enter this RNA without first obtaining permission from the Captain of 
the Port North Carolina or a designated representative.

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. 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).
    This regulatory action determination is based on the size, 
duration, and location of the RNA. Most vessel traffic will be able to 
safely transit this regulated area. There are only a few vessels of 100 
GT or more that transit this area. Vessel traffic is mostly comprised 
of vessels smaller than 100 GT. Vessels of 100 GT or more can contact 
the Coast Guard for permission to enter the RNA or for alternative 
instructions on how to transit the area. The Coast Guard will publish a 
notice in the Local Notice to Mariners.

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 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 
call or email 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 wish to 
comment on actions by

[[Page 40727]]

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.

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, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide 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 RNA 
that will prohibit entry of vessels of 100 GT or greater from entering. 
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. 1. 
A Record of Environmental Consideration supporting this determination 
is available in the docket. For instructions on locating the docket, 
see the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T05-0466 to read as follows:


Sec.  165.T05-0466  Regulated navigation area; Oregon Inlet Channel, 
Marc Basnight Bridge, Dare County, NC.

    (a) Location. The following area is a regulated navigation area 
(RNA): Span 34, between bents 33 and 34, of the Marc Basnight Bridge of 
the temporary Oregon Inlet Channel between Rodanthe and Nags Head, NC, 
in Dare County, NC.
    (b) Regulations. In addition to the general RNA regulations in 
Sec.  165.13, the following regulations apply to the RNA described in 
paragraph (a) of this section.
    (1) No vessel 100 GT or greater may enter, stop, moor, transit, or 
loiter in the RNA without explicit permission from the Captain of the 
Port North Carolina (COTP).
    (2) A vessel transiting through the RNA must make a direct passage. 
No vessel may stop, moor, anchor, or loiter within the RNA at any time 
unless it is engaged or intending to engage in bridge construction work 
in the RNA or dredging operations. All movement within the RNA is 
subject to a ``Slow-No Wake'' speed limit. No vessel may produce a wake 
or attain speeds greater than 5 knots unless a higher minimum speed is 
necessary to maintain bare steerageway.
    (3) The operator of any vessel transiting in the RNA must comply 
with all lawful directions given to them by the COTP or the COTP's on-
scene representative.
    (c) Enforcement period. This section will be enforced from July 5, 
2022, until June 30, 2023, or until the original Oregon Inlet Channel 
is restored. If the COTP determines this section need not be enforced 
during these times on a given day, he or she will use marine broadcast 
notices to mariners to announce the specific periods when this section 
will not be subject to enforcement.

    Dated: July 5, 2022.
Shannon Gilreath,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-14558 Filed 7-7-22; 8:45 am]
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