[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Rules and Regulations]
[Pages 7357-7359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02160]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2023-0053]
RIN 1625-AA11


Removal of Regulated Navigation Areas Within District 5

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is updating District 5 regulations to remove 
two regulated navigation areas in Captain of the Port Zone (COTP) North 
Carolina within District 5 that are no longer needed. These areas were 
created to address the impacts of extreme shoaling in the Oregon Inlet, 
but subsequent Army Corps of Engineers dredging activities have 
alleviated the issue. The Coast Guard is removing these regulated 
navigation areas (RNAs) from the CFR to prevent confusion and to make 
the regulations easy to use.

DATES: This final rule is effective immediately upon publication.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0053 in the search box and click ``Search.'' Next, in the Document 
Type

[[Page 7358]]

column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: For information about this document 
call or email Petty Officer Ken Farah, Waterways Management Division, 
U.S. Coast Guard; telephone 910-772-2221, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port North Carolina
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    This rule removes regulated navigation areas for regulations where 
the need no longer reflects current conditions in the waterways. If a 
change in circumstance indicates that additional safety measures are 
necessary, the Coast Guard might choose to promulgate new regulations 
to reflect that change. The changes to 33 CFR part 165 are authorized 
under the general authority of 46 U.S.C. 70034, which grants the 
Secretary of the Department of Homeland Security broad authority to 
issue, amend, or repeal regulations necessary to implement 46 U.S.C. 
chapter 700, Ports and Waterways Safety Program.
    The Secretary has delegated rulemaking authority under 46 U.S.C. 
70034 to the Commandant via Department of Homeland Security Delegation 
No. 00170.1. The Coast Guard is issuing this 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 with 
respect to this rule because it is unnecessary to do so. All of the 
changes in this final rule involve only minor amendments to existing 
regulations that will not result in a substantive effect on the public. 
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same 
reasons, good cause exists for making this final rule effective upon 
publication in the Federal Register.

III. Discussion of the Rule

    This rule removes RNAs 33 CFR 165.520, Regulated Navigation Area; 
Herbert C. Bonner Bridge, Oregon Inlet, NC, and 33 CFR 165.T05-0466 
Regulated navigation area; Oregon Inlet Channel, Marc Basnight Bridge, 
Dare County, NC.

Regulated Navigation Area; Herbert C. Bonner Bridge, Oregon Inlet, NC

    This RNA was created on November 3, 2015 to prevent vessel strikes 
to the bridge when vessels were forced to use alternative spans, or 
atypical routes, to transit through the bridge, 80 FR 67638. Vessels 
were forced to use these alternative spans due to the presence of 
shoals. In the time since this RNA was established, a new channel has 
been dredged to support navigation through Oregon Inlet. This new 
channel created more room for navigation and the use of alternative 
spans is no longer necessary. Therefore, the Coast Guard is removing 
this RNA.

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

    This RNA was created on 8 July 2022 in order to protect the public 
from the safety hazard associated with the extreme shoaling in this 
area and shifting of the main navigational channel. As with the above 
RNA, the Army Corps of Engineers has since completed its dredging work 
and the navigational channel has been restored. As a result, the Coast 
Guard is removing this RNA.

IV. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    An additional Executive order was recently published to promote the 
goals of Executive Order 13563: Executive Order 13610 (Identifying and 
Reducing Regulatory Burdens). Executive Order 13610 aims to modernize 
the regulatory systems and to reduce unjustified regulatory burdens and 
costs on the public.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866. A regulatory analysis (RA) follows.

B. 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.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we offer to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. 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.
    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).

D. 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.
    As required by 44 U.S.C. 3507(d), we will submit a copy of this 
rule to OMB for its review of the collection of information.

[[Page 7359]]

E. Federalism

    A rule has implications for federalism under Executive Order 13132 
(Federalism) if it has a substantial direct effect on 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 Executive Order 13132 and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132. Our analysis follows.
    It is well settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. It is also well settled 
that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 
8101 (design, construction, alteration, repair, maintenance, operation, 
equipping, personnel qualification, and manning of vessels), as well as 
the reporting of casualties and any other category in which Congress 
intended the Coast Guard to be the sole source of a vessel's 
obligations, are within the field foreclosed from regulation by the 
States. See the Supreme Court's decision in United States v. Locke and 
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000). This rule 
disestablished a prior RNA on a navigable waterway of the United States 
of America. Therefore, because the States may not regulate within these 
categories, this rule is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.

F. Unfunded Mandates

    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. Although this rule will not result 
in such expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

    This rule will 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).

H. 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.

I. 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 will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

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

K. 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.

L. Technical Standards and Incorporation by Reference

    The National Technology Transfer and Advancement Act, codified as a 
note to 15 U.S.C. 272, directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through OMB, 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.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management 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 made 
a determination that this action is one of a category of actions that 
do not individually or cumulatively have a significant effect on the 
human environment. For instructions on locating the docket, see the 
ADDRESSES section of this preamble. This rule is categorically excluded 
under paragraph L60(b) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev 1. Paragraph L60(b) pertains to Regulations for 
Regulated Navigation Areas and security or safety zones: specifically, 
the disestablishment or reduction in the size of these areas or zones.
    This rule removes two RNAs from the CFR as they are no longer 
applicable to the current conditions of the waterway.

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. 01.3.


Sec.  165.520  [Removed]

0
2. Remove Sec.  165.520.


Sec.  165.T05-0466  [Removed]

0
3. Remove Sec.  165.T05-0466.

    Dated: January 26, 2023.
Shannon Gilreath,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2023-02160 Filed 2-2-23; 8:45 am]
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