```

[Federal Register Volume 73, Number 154 (Friday, August 8, 2008)]
[Rules and Regulations]
[Pages 46192-46194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18351]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-0302]
RIN 1625-AA09

Drawbridge Operation Regulations; Smith Creek at Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is changing the drawbridge operation 
regulations of the S117-S133 Bridge, at mile 1.5, across Smith Creek at 
Wilmington, NC. This action will allow that the draw need not be opened 
for the passage of vessels.

DATES: This rule is effective September 8, 2008.

ADDRESSES: Comments and related materials received from the public, as

[[Page 46193]]

well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2008-0302 and are available online at 
http://www.regulations.gov. This material is also available for 
inspection or copying at two locations: 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 and the Commander (dpb), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Gary S. Heyer, Bridge Management Specialist, Fifth Coast Guard 
District, at (757) 398-6629. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On May 15, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Smith Creek at 
Wilmington, NC'' in the Federal Register (73 FR 28069). We received no 
comments on the published NPRM. No public meeting was requested, and 
none was held.

Background and Purpose

    The North Carolina Department of Transportation (NCDOT) is 
responsible for the operation of the S117-S133 Bridge, at mile 1.5, 
across Smith Creek at Wilmington, NC. The existing operating regulation 
is set out in 33 CFR 117.841 and requires the draw to open on signal if 
at least 24 hour notice is given. In the closed-to-navigation position, 
the S117-S133 Bridge has a vertical clearance of 12 feet, above mean 
high water.
    From the 1930s to the 1970s, Smith Creek was the main waterway 
route for commercial vessel traffic servicing lumber mills and 
factories along the waterfront in Wilmington, NC. There are no longer 
any commercial interests requiring access upstream. NCDOT has not 
received a request to open the bridge in over 20 years for waterway 
navigation, and it has been more than 35 years since the bridge was 
actually manned by operators.
    Due to the lack of requests for vessel openings of the drawbridge 
for the past 20 years, NCDOT requested to change the current operating 
regulations that the draw need not be opened for the passage of 
vessels.

Discussion of Comments and Changes

    The Coast Guard received no comments to the NPRM. Based on the 
information provided, we will implement a final rule with no changes to 
the NPRM.

Discussion of Rule

    The Coast Guard is amending 33 CFR 117.841, which governs the S117-
S133 Bridge by revising the paragraph to read that the draw need not be 
opened for the passage of vessels.

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. We reached this conclusion based on the 
fact that NCDOT has not received a request to open the bridge in over 
20 years for waterway navigation.

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 not have a significant economic impact on a 
substantial number of small entities because NCDOT has not received a 
request to open the bridge in over 20 years for waterway navigation.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could 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

[[Page 46194]]

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 would not create an 
environmental risk to health or risk to safety that might 
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 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.

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 Commandant Instruction M16475.1D 
and Department of Homeland Security Management Directive 5100.1, 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 there are no factors in this case that would limit the use of a 
categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (32) (e) of the Instruction, from further environmental 
documentation.
    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.

List of Subjects in 33 CFR Part 117

    Bridges.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No. 0170.1.

0
2. Revise Sec.  117.841 to read as follows:

Sec.  117.841  Smith Creek.

    The draw of the S117-S133 Bridge, mile 1.5 at Wilmington, need not 
open for the passage of vessels.

    Dated: July 30, 2008.
Fred M. Rosa, Jr.,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard 
District.
[FR Doc. E8-18351 Filed 8-7-08; 8:45 am]
BILLING CODE 4910-15-P
```