40734 Federal Register / Vol. 74, No. 155 / Thursday, August 13, 2009 / Rules and Regulations 

Dated: July 29, 2009. 

Wayne E. Justice, 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. E9–19431 Filed 8–12–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0496] 

RIN 1625–AA00 

Safety Zone; Hood Canal Bridge Cable 

Laying Operation, Hood Canal, WA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone in 

the vicinity of the Hood Canal Bridge 

due to the ongoing Hood Canal Bridge 

Construction Project. The safety zone is 

necessary to help protect construction 

personnel and the maritime public from 

the numerous dangers associated with 

the Hood Canal Bridge Construction 

Project. All persons and vessel are 

prohibited from entering the zone 

unless authorized by the Captain of the 

Port, Puget Sound or her Designated 

Representative. 

DATES: This rule is effective from 6 a.m. 

on June 15, 2009, until 6 a.m. on 

September 30, 2009. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2009– 

0496 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0496 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 ENS Ashley Wanzer, 

Waterways Management, Sector Seattle, 

Coast Guard; telephone 206–217–6175, 

e-mail Ashley.M.Wanzer@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 

publishing a NPRM would be contrary 

to the public interest because immediate 

action is necessary to ensure the safety 

of the construction personnel and the 

maritime public from the dangers 

associated with the Hood Canal Bridge 

Construction Project. 

For the same reasons, the Coast Guard 

also finds under 5 U.S.C. 553(d)(3) that 

good cause exists for making this rule 

effective less than 30 days after 

publication in the Federal Register. 

Background and Purpose 

The Hood Canal Bridge Construction 

Project is a complex construction 

operation involving multiple 

construction barges and the installation 

of underwater cables. Due to the 

numerous dangers associated with such 

operations, the Coast Guard is 

establishing a temporary safety zone for 

the project to help protect construction 

personnel and the maritime public from 

the numerous dangers associated with 

it. 

Discussion of Rule 

The temporary safety zone established 

by this rule is necessary to help protect 

construction personnel in the Hood 

Canal Bridge Construction Project and 

the maritime public from the numerous 

dangers associated with the project and 

will do so by prohibiting any person or 

vessel from entering the zones unless 

authorized by the Captain of the Port, 

Puget Sound or her Designated 

Representative. Persons wishing to 

request authorization to operate within 

or transit through the safety zone must 

contact the USCG Sector Seattle Joint 

Harbor Operations Center at 206–217– 

6001. Additional information regarding 

the construction work may be obtained 

from Kiewit-General Construction 

Company at 360–620–3423 or the onscene official patrol or M/V REDWOOD 

CITY on VHF–FM channel 13, 14, or 16. 

The safety zone encompass: (1) All 

waters within a 100 yard radius around 

any construction barge participating in 

the project while the barge is in 

operation; and, (2) all waters between 

any barge participating in the project 

and the Hood Canal Bridge itself. The 

safety zone will be in effect from 6 a.m. 

on June 15, 2009, until 6 a.m. on 

September 30, 2009, unless cancelled or 

ended sooner by the Captain of the Port 

or her Designated Representative. 

The Captain of the Port, Puget Sound 

may enlist the aid and cooperation of 

Federal, State, or local Law Enforcement 

Officers to enforce the rules contained 

in this section pursuant to 33 CFR 6.04– 

11. 

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. 

The economic impact of this 

temporary rule is expected to be 

minimal. This expectation is based on 

the fact that the safety zone established 

by this regulation will encompass small 

areas and be of such a short duration 

that the zone should not significantly 

impact commercial or recreational 

traffic. 

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 the affected 

waterway during the effective period. 

The safety zone will not have a 

significant economic impact on a 


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Federal Register / Vol. 74, No. 155 / Thursday, August 13, 2009 / Rules and Regulations 40735 

substantial number of small entities for 

the following reasons: This rule will be 

in effect for a limited duration and 

within a limited area. The area within 

the zone and the surrounding waterway 

is not considered a critical waterway to 

the boating public. The Captain of the 

Port Puget Sound may waive any of the 

requirements of this rule for any vessel 

or class of vessels upon finding that 

application of the rule is unnecessary or 

impractical for the purposes of port 

security, safety, or environmental safety. 

The Coast Guard will give notice to the 

public via a Broadcast Notice to 

Mariners that the regulation is in effect. 

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, because it 

involves the establishment of a 

temporary safety zone. 

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. 

■ 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: 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. 

■ 2. Add temporary § 165.T13–092 to 

read as follows: 


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40736 Federal Register / Vol. 74, No. 155 / Thursday, August 13, 2009 / Rules and Regulations 

1Section 2(d) provides that ‘‘[e]ffective January 1, 

1985, in any contract for the sale of timber from the 

National Forests, the Secretary of Agriculture shall 

require a cash down-payment at the time the 

contract is executed and periodic payments to be 

made over the remaining period of the contract.’’ 

§ 165.T13–092 Safety Zone; Hood Canal 

Bridge Cable Laying Operation, Hood 

Canal, WA 

(a) Location. The following area is a 

safety zones: (1) All waters of the Hood 

Canal, from surface to bottom, within a 

100 yard radius around any 

construction barge participating in the 

Hood Canal Bridge Construction Project 

while the barge is in operation; and 

(2) All waters of the Hood Canal, from 

surface to bottom, between any barge 

participating in the Hood Canal Bridge 

Construction Project and the Hood 

Canal Bridge itself. 

(b) Enforcement period. This rule will 

be enforced from 6 a.m. on June 15, 

2009, until 6 a.m. September 30, 2009, 

unless cancelled or ended sooner. 

(c) Regulations. 

(1) In accordance with the general 

regulations in 33 CFR Part 165, Subpart 

C, no vessel may enter, transit, moor, or 

anchor within this safety zone unless 

authorized by the Captain of the Port or 

her Designated Representative. 

(2) ‘‘Designated Representative’’ 

means any Coast Guard commissioned, 

warrant, or petty officer who has been 

designated by the Captain of the Port to 

act on her behalf. 

(3) To request authorization to operate 

within the safety zone, contact the 

USCG Sector Seattle Joint Harbor 

Operations Center at 206–217–6001. 

Additional information regarding the 

construction work may be obtained from 

Kiewit-General Construction Company 

at 360–620–3423, or the on-scene 

official patrol, or M/V REDWOOD CITY 

on VHF–FM channel 13, 14, or 16. 

Dated: June 14, 2009. 

S.E. Englebert, 

Captain, U.S. Coast Guard, Captain of the 

Port, Puget Sound. 

[FR Doc. E9–19434 Filed 8–12–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 223 

RIN 0596–AC80 

Sale and Disposal of National Forest 

System Timber; Downpayment and 

Periodic Payments 

AGENCY: Forest Service, USDA. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Forest Service’s downpayment and 

periodic payment regulations to reflect 

changes in contracting procedures and 

authorities since these regulations were 

adopted in 1991. The changes remove 

obsolete references and procedures; 

make downpayments and periodic 

payments optional for stewardship 

contracts; allow downpayment and 

periodic payment amounts to be 

recalculated when contracts receive rate 

redeterminations; revise procedures for 

releasing downpayments; and allow 

downpayments to be temporarily 

reduced for certain delays, 

interruptions, or extensions. This final 

rule protects the Government’s financial 

security, reduces speculative bidding, 

and encourages purchasers to harvest 

timber in a timely manner. In addition, 

the rule provides financial relief to 

timber purchasers when forest product 

prices drastically decline or purchasers 

receive additional contract time and are 

not expected to operate. 

DATES: This final rule is effective 

September 14, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Lathrop Smith, Forest Management 

staff, at (202) 205–0858, or Richard 

Fitzgerald, Forest Management staff, at 

(202) 205–1753. Individuals who use 

telecommunication devices for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–800–877–8339 

between 8 a.m. and 8 p.m., Eastern 

Standard Time, Monday through Friday. 

SUPPLEMENTARY INFORMATION: 

Background 

The downpayment regulation (36 CFR 

223.49) and periodic payments 

regulation (36 CFR 223.50) were 

adopted on July 31, 1991, (56 FR 36099) 

to protect the Government’s financial 

security, reduce speculative bidding, 

encourage purchasers to harvest timber 

in a timely manner and to comply with 

section 2d of the Federal Timber 

Contract Payment Modification Act 

(Pub. L. 98–478, 98 Stat 2213; 16 U.S.C. 

618) (Buy-out Act).1

The downpayment regulation requires 

purchasers to make a cash deposit in the 

timber sale account at the time of sale 

award equal to 10 percent of the sale’s 

total advertised value plus 20 percent of 

the bid premium. This cash is held by 

the Forest Service and cannot be used 

by the purchaser until (i) on scaled 

sales, stumpage representing 25 percent 

of the total bid value has been charged 

and paid for, or (ii) on tree measurement 

sales, stumpage representing 25 percent 

of the total bid value is shown on the 

timber sale statement of account to have 

been cut, removed, and paid for. (36 

CFR 223.49(d).) 

This final rule revises 36 CFR 223.49 

by: (1) Removing obsolete definitions, 

references and procedures; (2) making 

downpayments optional for stewardship 

contracts; (3) adding procedures to 

recalculate downpayments when 

contracts receive rate redeterminations; 

(4) revising procedures for releasing 

downpayments; and (5) adding 

procedures to temporarily reduce 

downpayments when the Forest Service 

authorizes or orders certain contract 

delays, interruptions, or extensions. 

Section 223.49(b) is revised to make 

downpayments optional for stewardship 

contracts. Stewardship contracts are 

awarded on a best value basis, which 

virtually eliminates the potential for 

speculative bidding because factors 

other than price determine best value. 

Further, section 323 of the Department 

of the Interior and Related Agencies 

Appropriations Act of 2003 (as 

contained in division F of Public Law 

108–7; 16 U.S.C. 2104 Note) authorizes 

the Forest Service to apply the value of 

timber or other forest products removed 

under a stewardship project as an offset 

against the cost of service work. Doing 

so provides financial security to the 

Government and incentivizes 

contractors to harvest timber and 

perform service work in a timely 

manner. Stewardship contracts require 

contractors to make cash deposits equal 

in value to timber they plan to cut 

before performing service work. To get 

these cash deposits back, contractors 

must perform the service work. 

Alternatively, if a contractor performs 

the service work first, the Government 

uses the value of timber the contractor 

harvests to offset the service work’s cost. 

For these reasons, most stewardship 

contracts do not need a downpayment. 

However, there can be exceptions. For 

example, if the value of the timber 

greatly exceeds the cost of services 

under a contract, a downpayment may 

be needed to provide financial security. 

Therefore, this final rule allows 

contracting officers to require 

downpayments on stewardship 

contracts when needed to ensure the 

Government’s financial security. 

This rule also revises § 223.49(c) to 

allow downpayments to be recalculated 

when contracts receive rate 

redeterminations. The initial 

downpayment amount deemed 

necessary to protect the Government’s 

financial security and encourage 

purchasers to timely harvest timber in is 

based on a percentage of a contract’s 

value at time of award. However, timber 

sale contracts contain procedures to 

redetermine stumpage rates for (1) 


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