2022-14558. Regulated Navigation Area; Oregon Inlet Channel, Marc Basnight Bridge, Dare County, NC

AGENCY:

Coast Guard, Department of Homeland Security (DHS).

ACTION:

Temporary final rule.

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 [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ 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 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

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.

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

§ 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 § 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.