Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 10, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operations; Atlantic Intracoastal Waterway (AIWW), Newport River, Morehead City, NC.” in the
Under 5 U.S.C 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the
The North Carolina Department of Transportation (NCDOT), who owns and operates this bascule-type railroad bridge, has requested a temporary change to the existing operating regulations to facilitate repairs of existing structural steel, strengthening of the main bascule girders and upgrading the obsolete drive system. The current regulations, under the general requirements set out at 33 CFR 117.5, require that the Carolina Coastal Railroad Bridge, at AIWW mile 203.8, across Newport River in Morehead City NC, shall open promptly and fully for the passage of vessels when a request to open is given. However, the drawbridge is currently maintained in the open to navigation position at all times and closes for passing trains.
In the closed position to vessels, this single-leaf bascule drawbridge has a vertical clearance of 4 feet above mean high water.
To facilitate the required repair work and to minimize the impact on navigation, the drawbridge would operate as follows: (1) From 5 a.m. October 17, 2012 to 8:30 p.m. on October 1, 2013 shall be maintained in the open position to vessels and would only be closed for the passage of trains and to perform periodic maintenance; and (2) in the closed position to vessels, from 8:30 p.m. to 5 a.m., with one optional opening provided at 12 a.m. (midnight) for vessels providing advance notice before 4 p.m. on the afternoon before the requested opening.
Vessel traffic along this part of the Atlantic Intracoastal Waterway consists of commercial and pleasure craft including sail boats, fishing boats, and tug and barge traffic, that transit mainly during the daylight hours with the occasional tug and barge traffic at night. The drawbridge is currently maintained in the open to navigation position at all times and closes for passing trains. Consequently, the number of mariners transiting through this section of the waterway is not based on the amount of vessel openings but on the average number of waterway users, which showed that there are fewer vessel transits at night for mariners, making it a more suitable time to restrict the operation of the drawbridge.
The Coast Guard provided a comment period of 30 days and no comments were received. The Coast Guard would temporarily revise the operating regulations at 33 CFR 117.821 by adding a new paragraph (c). Paragraph (c) would state from 5 a.m. on October 17, 2012 to 8:30 p.m. on October 1, 2013, the draw of the Carolina Coastal Railroad Bridge shall be maintained in the open position to vessels, and would only be closed for the passage of trains and to perform periodic maintenance; and the draw need not open from 8:30 p.m. to 5 a.m., except at 12 a.m. (midnight) for vessels providing advance notice before 4 p.m. on the afternoon before the requested opening.
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 or executive orders.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The temporary changes are expected to have minimal impact on mariners due to the low number of vessels transiting this area at night. Also, a midnight vessel opening would be available each night for vessels requiring an opening provided that advance notice is given by 4 p.m. on the afternoon before the requested opening.
The Regulatory Flexibility Act of 1980 (RFA), 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 received no comments from the Small Business Administration on this rule. 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 not have a significant economic impact on a substantial number of small entities because the rule adds navigational restrictions mainly to the movement of vessels during a time when there is less traffic. Most commercial traffic will leave and return during the day. The rule would possibly affect small entities such as owners/operators of vessels due to limited drawbridge openings from 8:30 p.m. to 5 a.m. To minimize delays, these vessels can plan their transits in accordance with the proposed opening schedule.
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 contact the person listed in the
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 Agricultural 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
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
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 does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “
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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would 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.
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.
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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
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.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that 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 (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(c) From 5 a.m. on October 17, 2012 to 8:30 p.m. on October 1, 2013, the draw of the Carolina Coastal Railroad Bridge, at mile 203.8, (Newport River) at Morehead City, shall operate as follows:
(1) During the day from 5 a.m. to 8:30 p.m., shall be maintained in the open position to vessels and would only be closed for the passage of trains and to perform periodic maintenance.
(2) At night, need not open 8:30 p.m. to 5 a.m. except an opening would be provided at 12 a.m. (midnight) if advance notice is given before 4 p.m. on the afternoon before the requested opening.