[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 619-621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00562]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-1067]
RIN 1625-AA00


Safety Zone: Cape Fear River, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish two temporary safety 
zones on the navigable waters of the Cape Fear River in Brunswick 
County and New Hanover County, North Carolina. These temporary safety 
zones are intended to restrict vessel traffic on the Cape Fear River 
while a vessel transports and offloads one new Post-Panamax container 
crane to the North Carolina State Port in Wilmington, North Carolina. 
The first temporary safety zone will be enforced for one day during 
vessel transit from March 20 through April 15, 2019, and the second 
temporary safety zone for offload will be enforced for one day within 
five days after transit. This action is intended to restrict vessel 
traffic on the Cape Fear River to protect mariners and vessels from the 
hazards associated with transporting and offloading the assembled 
container crane. This proposed rulemaking would prohibit vessels or 
persons from being in the safety zones unless specifically authorized 
by the Captain of the Port (COTP) North Carolina or a designated 
representative. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 4, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2018-1067 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, contact Petty Officer Matthew Tyson, Waterways 
Management Division, U.S. Coast Guard Sector North Carolina, 
Wilmington, NC; telephone: 910-772-2221, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port

II. Background, Purpose, and Legal Basis

    On November 14, 2018, the North Carolina State Port Authority 
notified the Coast Guard that it will be transporting one pre-assembled 
Post-Panamax container crane up the Cape Fear River to the North 
Carolina State Port in Wilmington, North Carolina, and offloading it. 
The planned transit date is March 25, 2019, and the planned offload 
date is March 27, 2019. Due to crane preconstruction and vessel travel 
times, the crane could transit as early as March 20, 2019, and as late 
as April 15, 2019. The transit path will be from the Cape Fear River 
Entrance Buoy, north through the Cape Fear River to the turning basin, 
and ending at the North Carolina State Port in Wilmington, North 
Carolina. The planned offload date is two days after transit, but 
weather conditions may change the offload date to any day within five 
days after transit. The Captain of the Port (COTP) North Carolina has 
determined that potential safety hazards associated with transporting 
and offloading the container crane would be a concern for anyone 
transiting the Cape Fear River.
    The purpose of this rule is to protect persons, vessels, and the 
marine environment on the navigable waters on the Cape Fear River 
during the transport and offload of the container crane. The Coast 
Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

III. Discussion of Proposed Rule

    The COTP proposes to establish a safety zone on a portion of the 
Cape Fear River to be enforced during the transit of a vessel 
transporting one pre-assembled Post-Panamax container crane up the Cape 
Fear River from March 20 through April 15, 2019, and offloading the 
container within five days after transit. The currently scheduled 
transit date is March 25, 2019, and the currently scheduled offload 
date is March 27, 2019. The transport is expected to take between five 
and seven hours and the offload is expected to take up to five hours. 
Exact enforcement times will be based on tide schedules, anticipated 
sea conditions, and weather conditions, therefore the exact enforcement 
times will be announced by broadcast to mariners at least two days 
prior to the transit. The safety zone for the transit will include all 
navigable waters of the Cape Fear River from the International 
Regulations for Prevention of Collisions at Sea, 1972 (COLREGS, 72) 
Demarcation Line drawn from Oak Island Light House to Bald Head Island 
Abandon Light House noted on NOAA chart 11537 and proceeding north up 
the Cape Fear River from shore to shore to the Cape Fear Memorial 
Bridge, a length of approximately 26 miles. This portion of the safety 
zone will be enforced until the vessel transporting the crane has been 
safely moored at North Carolina State Port in Wilmington, North 
Carolina. The safety zone for the offload will include all navigable 
waters of the Cape Fear River within 200 yards of the transport vessel 
while it is moored. The duration of this zone is intended to protect 
persons, vessels, and the marine environment on the navigable waters of 
the Cape Fear River during the transport and offload of the container 
crane. No vessel or person will be permitted to enter the safety zone 
unless specifically authorized by the Captain of the Port North 
Carolina or a designated representative. There will be a pre-designated 
safety vessel ahead of the transport vessel to monitor the flow of 
traffic and inform mariners that the container crane transit is in 
progress. Vessels that are less than 40 feet in height and will not 
impede the transport vessel may request permission to pass through the 
safety zone or remain in place as the transport vessel passes. The Fort 
Fisher and Bald Head ferries will be able to operate on their normal 
schedule as long as the scheduled transit will not come within one mile 
of the transport vessel and they receive permission from the Captain of 
the Port North Carolina or a designated

[[Page 620]]

representative. The strict height restriction of 40 feet is required 
because portions of the transported crane extend over the water on both 
sides of the transport vessel. The regulatory text we are proposing 
appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed 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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, and duration of the proposed safety zone. Vessel traffic will 
not be allowed to enter or transit portions of the Cape Fear River for 
2 non-consecutive days from March 20 through April 20, 2019. Vessel 
traffic will not be allowed to enter or transit a portion of the Cape 
Fear River for approximately five to seven hours during the transit of 
the transport vessel, and for up to five hours during the offload after 
the transit. The Coast Guard will issue a Local Notice to Mariners and 
transmit a Broadcast Notice to Mariners via VHF-FM marine channel 16 
regarding the safety zone. This portion of the Cape Fear River has been 
determined to be a high traffic area. This rule allows vessels to 
request permission to pass through the moving safety zone or remain in 
place as long as they are under the height restriction of 40 feet.

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 
proposed rule would 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 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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 proposed 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 FOR FURTHER INFORMATION CONTACT 
section. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

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

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.1D, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary 
determination 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 proposed rule involves a safety zone lasting five to 
seven hours on all navigable waters of the Cape Fear River from the 
International Regulations for Prevention of Collisions at Sea, 1972 
(COLREGS, 72) Demarcation Line drawn from Oak Island Light House to 
Bald Head Island Abandon Light House noted on NOAA chart 11537 and 
proceeding north up the Cape Fear River from shore to shore to the Cape 
Fear Memorial Bridge, a length of approximately 26 miles, and a safety 
zone lasting up to five hours that would prohibit entry within 200 
yards of a moored vessel. Normally such actions are categorically 
excluded from further review under paragraph L60(a) of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

[[Page 621]]

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T05-1067 to read as follows:


Sec.  165.T05-1067   Safety Zone; Cape Fear River, Brunswick County and 
New Hanover County, NC.

    (a) Location. The following areas are safety zones:
    (1) Safety zone 1. All navigable waters of the Cape Fear River from 
the International Regulations for Prevention of Collisions at Sea, 1972 
(COLREGS, 72) Demarcation Line drawn from Oak Island Light House to 
Bald Head Island Abandon Light House noted on NOAA chart 11537 and 
proceeding north up the Cape Fear River from shore to shore to the Cape 
Fear Memorial Bridge, in Brunswick County and New Hanover County, NC;
    (2) Safety zone 2. Waters of the Cape Fear River within 200 yards 
around the vessel transporting the new Post-Panamax container crane to 
the North Carolina State Port Authority in Wilmington, North Carolina, 
while the vessel is moored at the North Carolina State Port in 
Wilmington, North Carolina.
    (b) Definitions. As used in this section--
    Captain of the Port means the Commander, Sector North Carolina.
    Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard commissioned, warrant, or petty officer 
designated by the Captain of the Port North Carolina (COTP) for the 
enforcement of the safety zone.
    Participants means persons and vessels involved in support of the 
container crane transport and offload.
    (c) Regulations. (1) The general regulations governing safety zones 
in Sec.  165.23 apply to the areas described in paragraph (a) of this 
section.
    (2) With the exception of participants, entry into or remaining in 
these safety zones is prohibited unless authorized by the COTP North 
Carolina or the COTP North Carolina's designated representative. All 
other vessels must depart the zone immediately.
    (3) The Captain of the Port, North Carolina can be reached through 
the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, 
North Carolina at telephone number 910-343-3882.
    (4) The Coast Guard and designated security vessels enforcing the 
safety zone can be contacted on VHF-FM marine band radio channel 13 
(165.65 MHz) and channel 16 (156.8 MHz).
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement Periods. This regulation will be enforced for:
    (1) Zone 1 during vessel transit. Vessel transit is anticipated to 
take one day and will occur from March 20 through April 15, 2019;
    (2) Zone 2 during offload of the Post-Panamax container crane. 
Offload will take one day and will occur within five days after vessel 
transit is complete.
    (f) Public Notification. The Coast Guard will notify the public of 
the active enforcement times at least 48 hours in advance by 
transmitting Broadcast Notice to Mariners via VHF-FM marine channel 16.

    Dated: January 28, 2019.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2019-00562 Filed 1-30-19; 8:45 am]
 BILLING CODE 9110-04-P