[Federal Register Volume 73, Number 51 (Friday, March 14, 2008)]
[Rules and Regulations]
[Pages 13756-13758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5126]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2008-0061]
RIN 1625-AA11


Regulated Navigation Areas: Cape Fear River, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) on the waters of the Cape Fear River, Wilmington, NC. This action 
is necessary to minimize the potential risk of allision to the USS 
NORTH CAROLINA, a United States Navy submarine, while moored at the 
North Carolina State Port, Wilmington, NC. This rule will enhance the 
safety of vessels transiting this area of the Cape Fear River during 
the period of reduced horizontal clearance.

DATES: This rule is effective from 8 a.m. on April 25, 2008, through 8 
p.m. on May 7, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-0061 and are available online 
at http://www.regulations.gov. They are also available for inspection 
or copying at Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning this 
rule, phone CWO4 Stephen Lyons, Waterways Management Division Chief, 
Sector North Carolina, at (252) 247-4525.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. The USS NORTH CAROLINA will be moored in the Cape Fear 
River, Wilmington, North Carolina for an official United States Navy 
commissioning ceremony. As the ceremony is a military function within 
the meaning of 5 U.S.C. 553(a)(1), the Coast Guard will not conduct a 
notice and comment period for this temporary final rule.

[[Page 13757]]

Background and Purpose

    The USS NORTH CAROLINA, a United States Navy submarine, will be 
moored at the port in Wilmington, North Carolina Cape Fear River, in 
preparation for the Navy's commissioning ceremony of the submarine. 
This rule provides for the safety and security of a U.S. Navy submarine 
and vessels transiting past it while it is moored in close proximity to 
the shipping channel at the North Carolina State Port, Wilmington, NC. 
This action is necessary to protect the USS NORTH CAROLINA and prevent 
vessels 300 gross tons or more and all tugs and tows with a combined 
tonnage of 300 gross tons or more from alliding with the submarine due 
to a loss of steering or propulsion, other mechanical failure, or human 
error.

Discussion of Rule

    The RNA will encompass the waters of the Cape Fear River from 1 
nautical mile south of the North Carolina State Port, Wilmington, NC, 
to 1 nautical mile north of the North Carolina State Port, Wilmington, 
NC. Each operator of a vessel of 300 gross tons or more or a tug and 
tow with a combined tonnage of 300 gross tons or more that intends to 
enter the RNA shall:
    (i) Ensure they have sufficient propulsion and directional control 
to safely navigate the RNA under prevailing conditions,
    (ii) Make the necessary arrangements and be escorted through the 
RNA by a tug with sufficient horsepower to arrest and control their 
vessel or tug and tow in the event of a steering, propulsion, or other 
casualty,
    (iii) Ensure they do not meet or overtake any other vessel of 300 
gross tons or more or a tug and tow with a combined tonnage of 300 
gross tons or more in the RNA, and
    (iv) Obtain authorization from the Captain of the Port, Cape Fear 
River. To seek permission to transit the area, the Captain of the Port, 
Cape Fear River can be contacted via Sector North Carolina at telephone 
number (252) 247-4570. If permission is granted, all persons and 
vessels must comply with the instructions of the Captain of the Port, 
Cape Fear River and proceed at the minimum speed necessary to maintain 
a safe course while transiting the RNA.
    The Captain of the Port, Cape Fear River by the direction of the 
District Commander, may grant waivers upon request, and authorize a 
deviation from any part of this regulation if it is found that the 
proposed operation can be done safely. A request for a wavier and or 
deviation must be submitted in writing and received not less than 24 
hours before the intended operation and must state specifically why 
this action is necessary.

Regulatory Evaluation

    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 limited amount of time this RNA will 
be in place and the need to protect the public while the USS NORTH 
CAROLINA is moored in the Cape Fear River prompts the Coast Guard to 
promulgate this temporary final rule.

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 
would not have a significant economic impact on a substantial number of 
small entities.
    The Coast Guard expects the economic impact of this rule to be 
minimal. Although this regulation will restrict movement in the 
regulated area, the effect of this rule will not be significant 
because: (i) The regulated navigation area will be in effect for a 
limited duration of time and (ii) the Coast Guard will make 
notifications via maritime advisories so mariners can adjust their 
plans accordingly.

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 this 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 would call 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 would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would not affect 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 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

[[Page 13758]]

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under 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 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 34(g) of the Instruction from further 
environmental documentation. A final ``Environmental Analysis 
Checklist'' and a final ``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.

Regulatory Text

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; 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 temporary Sec.  165.T05-007 to read as follows:


Sec.  165.T05-007  Regulated Navigation Area; Cape Fear River, 
Wilmington North Carolina

    (a) Definitions. For the purposes of enforcing the temporary RNA 
for the location identified in paragraph (b) of this section, a 
Designated Representative means a Coast Guard commissioned, warrant or 
petty officer who has been authorized by the COTP Cape Fear River to 
act on his behalf.
    (b) Location. The following area is a regulated navigation area: 
Waters of the Cape Fear River, from surface to bottom, encompassed by 
latitude 34[deg] 10''N thence north to the Cape Fear Memorial Bridge.
    (c) Regulations. (1) The general regulations governing regulated 
navigation areas found in Sec.  165.13 of this part apply to the 
regulated navigation area described in paragraph (b) of this section.
    (2) All persons are required to comply with the general regulations 
governing this regulated navigation area (RNA).
    (3) This rule provides for the safety of a U.S. Navy submarine and 
vessels transiting past it while it is moored in close proximity to the 
shipping channel at the North Carolina State Port, Wilmington, NC. This 
action is necessary to protect the USS NORTH CAROLINA and prevent 
vessels 300 gross tons or more and all tugs and tows with a combined 
tonnage of 300 gross tons or more from alliding with the submarine due 
to a loss of steering or propulsion, other mechanical failure, or human 
error.
    (4) The RNA will encompass the waters of the Cape Fear River from 1 
nautical mile south of the North Carolina State Port, Wilmington NC to 
1 nautical mile north of the North Carolina State Port, Wilmington, NC. 
Each operator of a vessel of 300 gross tons or more or a tug and tow 
with a combined tonnage of 300 gross tons or more that intends to enter 
the RNA shall:
    (i) Ensure that they have sufficient propulsion and directional 
control to safely navigate the RNA under prevailing conditions,
    (ii) Make the necessary arrangements and be escorted through the 
RNA by a tug with sufficient horsepower to arrest and control their 
vessel or tug and tow in the event of a steering, propulsion, or other 
casualty,
    (iii) Ensure they do not meet or overtake any other vessel of 300 
gross tons or more or a tug and tow with a combined tonnage of 300 
gross tons or more in the RNA, and
    (iv) Obtain authorization from the Captain of the Port, Cape Fear 
River. To seek permission to transit the area, the Captain of the Port, 
Cape Fear River can be contacted via Sector North Carolina at telephone 
number (252) 247-4570. If permission is granted, all persons and 
vessels must comply with the instructions of the Captain of the Port, 
Cape Fear River and proceed at the minimum speed necessary to maintain 
a safe course while transiting the RNA.
    (5) The Captain of the Port, Cape Fear River by the direction of 
the District Commander, may grant waivers upon request, and authorize a 
deviation from any part of this regulation if it is found that the 
proposed operation can be done safely. A request for a wavier and or 
deviation must be submitted in writing and received not less than 24 
hours before the intended operation and must state specifically why 
this action is necessary.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (e) Enforcement period. This section will be enforced from 8 a.m. 
on April 25, 2008 through 8 p.m. May 7, 2008.

    Dated: February 20, 2008.
F.M. Rosa,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. E8-5126 Filed 3-13-08; 8:45 am]
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