
[Federal Register: June 17, 2010 (Volume 75, Number 116)]
[Rules and Regulations]               
[Page 34365-34367]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn10-17]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0091]
RIN 1625-AA00

 
Safety Zone, Alligator River, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the Alligator River at East Lake, North Carolina. The safety 
zone is intended to temporarily restrict vessel traffic movement in the 
zone area and is necessary to provide for the safety of mariners on 
navigable waters during maintenance on the U.S. Highway 64 Swing 
Bridge.

DATES: This rule is effective from 7 p.m. July 1, 2010 through 7 a.m. 
September 30, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0091 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0091 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 CWO4 Stephen Lyons, Waterways Management 
Division Chief, Coast Guard Sector North Carolina; telephone (252) 247-
4525, e-mail Stephen.W.Lyons2@uscg.mil. 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) 
because the publishing of an NPRM would be impracticable and contrary 
to public interest since immediate action is needed to ensure the 
public's safety during construction activity. Delaying the 
implementation of the safety zone would subject the public to the 
hazards associated with maintenance operations on the US Highway 64 
Swing Bridge. The danger posed by marine traffic on the Alligator River 
makes safety zone regulations necessary to provide for the safety of 
construction support vessels and other vessels transiting the 
construction area. For the safety concerns noted, it is in the public 
interest to have these regulations in effect during construction. The 
Coast Guard will issue broadcast notice to mariners to advise vessel 
operators of

[[Page 34366]]

navigational restrictions. On-scene Coast Guard and local law 
enforcement vessels will also provide actual notice to mariners.
    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 public interest, since immediate action is needed to 
ensure the safety of human life and property from the hazards 
associated with the operation of heavy equipment in the waterway during 
bridge maintenance operations.

Basis and Purpose

    The State of North Carolina Department of Transportation awarded a 
contract to Coastal Gunite Construction Company of Cambridge, MD to 
perform bridge maintenance on the U.S. Highway 64 Swing Bridge crossing 
the Alligator River, North Carolina at Atlantic Intracoastal Waterway 
Mile 84.2. The contract provides for cleaning, painting, and steel 
repair to begin on July 1, 2010 and will be completed by September 30, 
2010. The contractor will require the swing bridge to remain in the 
closed position during painting. The Coast Guard will temporarily 
restrict access to this section of Alligator River during the painting 
of the swing when maintenance equipment will be obstructing the 
waterway.

Discussion of Rule

    The temporary safety zone will encompass a 100 yard radius on the 
waters of the Alligator River centered at (35[deg]54'3'' N/
076[deg]00'25'' W) a position directly under the U.S. Highway 64 Swing 
Bridge. All vessels are prohibited from transiting this section of the 
waterway while the safety zone is in effect. This zone will be in 
effect from 7 p.m. to 7 a.m. daily from July 1, 2010 through September 
30, 2010. A daily opening will be provided at 1 a.m. if a two hour 
advanced notice is provided to the contractor by contacting the bridge 
at telephone number (252) 796-7261 or VHF Marine Band Radio channel 13. 
Entry into the zone at any other time during the closure period will 
not be permitted except as specifically authorized by the Captain of 
the Port or a designated representative. To seek permission to transit 
the area, mariners can contact Sector North Carolina at telephone 
number (252) 247-4570.

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 regulation will restrict access to the area, the 
effect of this rule will not be significant because: (i) The safety 
zone will only be in effect from 7 p.m. to 7 a.m. daily, (ii) a daily 
opening will be provided at 1 a.m. if a two hour advanced notice is 
provided to the contractor by contacting the bridge at telephone number 
(252) 796-7261 or VHF Marine Band Radio channel 13 (iii) the Coast 
Guard will give advance notification via maritime advisories so 
mariners can adjust their plans accordingly, and (iv) although the 
safety zone will apply to the section of the Alligator River directly 
under the U.S. Highway 64 Swing Bridge, vessel traffic can use 
alternate waterways to transit safely around the safety zone.

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 commercial tug and barge 
companies, recreational and commercial fishing vessels intending to 
transit the specified portion of Alligator River from 7 p.m. to 7 a.m. 
from July 1, 2010 through September 30, 2010.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will only be enforced daily from 7 p.m. to 7 a.m. and a daily 
opening will be provided at 1 a.m. if a two hour advanced notice is 
provided to the contractor by contacting the bridge at telephone number 
(252) 796-7261 or VHF Marine Band Radio channel 13. Although the safety 
zone will apply to this section of the Alligator River, vessel traffic 
can use alternate waterways to transit safely around the safety zone. 
Before the effective period, the Coast Guard will issue maritime 
advisories widely available to the users of the waterway.

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 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 (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.

[[Page 34367]]

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.

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 that 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 temporary safety zone to protect 
the public from bridge maintenance operations. 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.T05-0091 to read as follows:


Sec.  165.T05-0091  Safety Zone; Alligator River, NC.

    (a) Definitions. For the purposes of this section, Captain of the 
Port means the Commander, Sector North Carolina. Representative means 
any Coast Guard commissioned, warrant, or petty officer who has been 
authorized to act on the behalf of the Captain of the Port.
    (b) Location. The following area is a safety zone: The temporary 
safety zone will encompass a 100 yard radius on the waters of the 
Alligator River centered at (35[deg]54'3'' N/076[deg]00'25'' W) a 
position directly under the U.S. Highway 64 Swing Bridge.
    (c) Regulations. (1) The general regulations contained in Sec.  
165.23 of this part apply to the area described in paragraph (b) of 
this section.
    (2) Persons or vessels requiring entry into or passage through any 
portion of the safety zone must first request authorization from the 
Captain of the Port, or a designated representative, unless the Captain 
of the Port previously announced via Marine Safety Radio Broadcast on 
VHF Marine Band Radio channel 22 (157.1 MHz) that this regulation will 
not be enforced in that portion of the safety zone. The Captain of the 
Port can be contacted at (252) 247-4570 or by VHF Marine Band Radio 
channels 13 and 16.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (e) Enforcement period. This zone will be in effect from 7 p.m. to 
7 a.m. daily from July 1, 2010 through September 30, 2010. A daily 
opening will be provided at 1 a.m. if a two hour advanced notice is 
provided to the contractor by contacting the bridge at telephone number 
(252) 796-7261 or VHF Marine Band Radio channel 13.

    Dated: May 21, 2010.
A. Popiel,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2010-14628 Filed 6-16-10; 8:45 am]
BILLING CODE 9110-04-P

