[Federal Register: November 6, 2009 (Volume 74, Number 214)] [Rules and Regulations] [Page 57415-57418] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr06no09-7] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2009-0956] RIN 1625-AA00 Safety Zone; SR 90 Bridge, Assawoman Bay, Isle of Wight and Ocean City, MD AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. ----------------------------------------------------------------------- SUMMARY: The Coast Guard is establishing a temporary safety zone on Assawoman Bay in the vicinity of the SR 90 Bridge (Ocean City Expressway) that connects Isle of Wight and Ocean City, MD. This action will protect mariners and public property on Assawoman Bay from the hazards associated with possible falling debris from the channel span superstructure and facilitates expeditious repairs to the [[Page 57416]] span by allowing the contracted company to maintain their position inside the main channel. Vessel traffic will be redirected to an alternative channel during the effective period. DATES: This rule is effective from 12:01 a.m. October 22, 2009 through 11:59 p.m. December 31, 2009. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-0956 and are available online by going to http://www.regulations.gov, inserting USCG-2009-0956 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 LT Tiffany Duffy, United States Coast Guard Sector Hampton Roads Waterways Management Division; telephone 757-668-5580, e-mail Tiffany.A.Duffy@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) with respect to this rule because immediate action is needed to provide for the safety of life and property on navigable waters. 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 the public interest because the dilapidated condition of the channel span superstructure could lead to severe injury, fatalities, and/or destruction of public property; therefore, immediate action is needed to ensure public safety. Background and Purpose Coast Guard Sector Hampton Roads has been notified by Maryland Department of Transportation State Highway Administration that immediate repairs are required on the channel span superstructure of the SR 90 Bridge over Assawoman Bay. During the period of repair, vessel traffic through the main channel will be restricted and redirected to transit under the bridge span immediately west of the main span. Due to the need to protect mariners and spectators from the hazards associated with repair operations, access to all waters of Assawoman Bay within the 900 foot radius of the main channel of the SR 90 Bridge will be closed to navigation. Hazards associated with repair operations include, but are not limited to, the presence of heavy machinery used to fix the main channel span and the potential for falling objects or debris caused by vehicular traffic travelling over the dilapidated portion of the main channel span. Discussion of Rule The Coast Guard is establishing a safety zone on the specified waters of Assawoman Bay in the vicinity of Isle of Wight and Ocean City, Maryland. This safety zone will encompass all navigable waters of Assawoman Bay within 900 foot radius of approximate position 38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983). All traffic will be redirected to navigable waters immediately adjacent to and west of the main channel span structure by private aids to navigation pre- positioned at approximate positions 38[deg]23'17'' N, 075[deg]5'34'' W; 38[deg]23'17'' N, 075[deg]5'33'' W; 38[deg]23'24'' N, 075[deg]5'33'' W; 38[deg]23'23'' N, 075[deg]5'32'' W; 38[deg]23'17'' N, 075[deg]5'33'' W; and 38[deg]23'24'' N, 075[deg]5'33'' W (NAD 1983) and by bridge navigation lights. The safety zone will be established in the interest of public safety during the repair of the SR 90 Bridge (Ocean City Expressway) channel span superstructure and will be enforced from 12:01 a.m. October 22, 2009 through 11:59 p.m. December 31, 2009. No person or vessel may enter or remain in the safety zone unless authorized by the Captain of the Port or his Representative. Vessels will be allowed to transit around the safety zone, under the bridge span immediately west of the main span. Notification of the safety zone will be provided to the public via marine information broadcasts. 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 proposed regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect during less-traveled times of the year; (ii) the zone is of limited size; (iii) there is an alternative channel for vessels to transit; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. For those reasons, the Coast Guard does not anticipate any significant economic impact. 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 vessels intending to transit or anchor Assawoman Bay in the vicinity of the SR 90 Bridge (Ocean City Expressway) from 12:01 a.m. October 22, 2009 until 11:59 p.m. December 31, 2009. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (1) The safety zone will only be in place during less-traveled times of the year; (2) before the effective period, maritime advisories will be issued allowing mariners to adjust their plans accordingly; (3) although the safety zone will apply to [[Page 57417]] all navigable waters of Assawoman Bay within a 900 feet radius of approximate position 38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983), vessel traffic will be allowed to pass through the zone with the permission of the Captain of the Port or his Representative; and (4) there is an alternative channel for vessels to transit. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 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 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. Taking of Private Property This rule will not effect 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 which 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 establishing a safety zone. This safety zone introduces no additional hazards to the environment while ensuring that life and property are protected during repair operations of the channel span superstructure. 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.T05-0956 to read as follows: Sec. 165.T05-0956 Safety Zone; SR 90 Bridge, Assawoman Bay, Isle of Wight and Ocean City, MD. (a) Location. The following area is a safety zone: Specified waters of Assawoman Bay within 900 foot radius of approximate position 38[deg]23'19'' N, 075[deg]5'22'' W (NAD 1983)., in the [[Page 57418]] vicinity of Isle of Wight and Ocean City, MD. (b) Definitions. As used in this section, designated representative means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Hampton Roads, Virginia to act on his behalf. (c) Regulations. (1) In accordance with the general regulations in 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port, Hampton Roads or his designated representatives. (2) The operator of any vessel in the immediate vicinity of this safety zone must: (i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign. (ii) Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign. (3) The Captain of the Port, Hampton Roads can be reached through the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia at telephone number (757) 638-6641. (4) The Coast Guard Representatives 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 Period: This regulation will be in effect from October 22, 2009 through December 31, 2009. Dated: October 22, 2009. M.S. Ogle, Captain, U.S. Coast Guard, Captain of the Port Hampton Roads. [FR Doc. E9-26772 Filed 11-5-09; 8:45 am] BILLING CODE 4910-15-P
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