[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)]
[Rules and Regulations]
[Pages 49281-49283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21276]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0920]
RIN 1625-AA00


Safety Zone; Cape Fear River, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Cape Fear River to minimize risks caused by 
vessels transiting near vessels and divers conducting post-Hurricane 
Florence recovery operations. Entry of vessels or persons into this 
zone is prohibited unless a vessel meets the stated requirements or is 
specifically authorized by the Captain of the Port North Carolina 
(COTP).

DATES: This rule is effective without actual notice from October 1, 
2018, through October 17, 2018. For the purposes of enforcement, actual 
notice will be used from September 26, 2018, through October 1, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0920 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Chief Petty Officer Joshua O'Rourke, Waterways Management 
Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC; 
telephone 910-772-2227, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

COTP Captain of the Port
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

II. Background Information and Regulatory History

    After Hurricane Florence passed over the Cape Fear River, the 
National Oceanic and Atmospheric Administration and U.S. Army Corps of 
Engineers conducted surveys of the navigable channel to identify 
obstructions that may have collected on the river bottom and pose risks 
to shipping traffic. The surveys identified a number of potential 
obstructions that require further investigation and possible removal. 
Operations are scheduled to begin on September 26, 2018. These 
operations involve diving in murky water with strong currents, using 
heavy-lift equipment on floating platforms, and other inherently risky 
activities that require strict safety procedures. Vessels that pass too 
close or too quickly increase the risk of these operations. To mitigate 
such risks, the COTP is establishing a safety zone around the vessels 
conducting diving and salvage operations. This safety zone will move 
with the vessels as they transit the river to investigate and remove 
obstructions.
    The Coast Guard is issuing this temporary 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 to do so would be impracticable and 
contrary to the public interest. Waiting to return the waterway to 
conditions that accommodate the safe, full resumption of commercial 
shipping is contrary to the public interest. It is impracticable to 
publish an NPRM because recovery assets will be on scene on or about 
September 26, 2018, and the safety zone needs to be in place at that 
time to protect vessels and persons in the vicinity of salvage 
operations.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest. 
Immediate action is needed to protect vessels and persons conducting 
diving and salvage operations, as well as vessels transiting nearby, 
from the potential hazards associated with these operations.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port North Carolina (COTP) has determined that 
potential hazards associated with salvage operations starting on or 
about September 26, 2018, will be a safety concern when anyone 
approaches within 100 yards of salvage vessels and divers. This rule is 
needed to protect personnel and vessels in the navigable waters within 
and transiting near the safety zone.

IV. Discussion of the Rule

    This rule establishes a moving safety zone that protects vessels 
and affiliated divers engaged in post-Hurricane Florence salvage 
operations on the navigable waters of the Cape Fear River. The safety 
zone includes all navigable waters within 100 yards of vessels actively 
engaged in salvage and dive support vessels being used to conduct 
salvage operations on the Cape Fear River. No vessel or person will be 
permitted to enter the safety zone without obtaining permission from 
the COTP or a designated representative. Vessels requesting to enter or 
transit the safety zone may contact the Sector North Carolina Command 
Center via VHF-FM channel 16 or telephone at 910-362-4015.

V. Regulatory Analyses

    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 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 rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule 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

[[Page 49282]]

flexibility of the safety zone. Because of its size, vessels will 
typically be able to safely transit around the zone. In cases where the 
location of salvage operations don't allow safe passage without 
transiting through the zone, the regulation is written to give the 
opportunity for transiting through after coordinating with salvage 
operators and the COTP. Moreover, the Coast Guard will issue a 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zone updating mariners of the location of current salvage operations.

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 rule 
will 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 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. Collection of Information

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

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

F. Environment

    We have analyzed this 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 determined 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 rule involves a 
safety zone that is active only during salvage operations that will 
prohibit entry within 100 yards of salvage vessels, machinery, and 
divers being used to investigate and remove obstructions from the Cape 
Fear River. It is 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 Record of Environmental Consideration supporting 
this determination is available in the docket where indicated under 
ADDRESSES.

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.

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

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.T05-0920 to read as follows:


Sec.  165.T05-0920   Safety Zone, Cape Fear River, Wilmington, NC.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Cape Fear River, from surface to bottom, within 100 yards 
of:
    (1) Any salvage vessel exhibiting visual signals for vessels 
restricted in ability to maneuver in accordance with 33 CFR 83.27(b); 
and
    (2) Any diving vessel exhibiting visual signals for vessels engaged 
in diving operations in accordance with 33 CFR 83.27(e).
    (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.

[[Page 49283]]

    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or 
designated representative.
    (2) To seek permission to enter, contact the COTP or designated 
representative via VHF-FM channel 16 or telephone at 910-362-4015 and 
comply with all lawful orders or directions given.
    (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 section will be enforced any time 
salvage vessels are exhibiting visual signals for vessels restricted in 
ability to maneuver in accordance with 33 CFR 83.27(b) or any time 
diving vessels are exhibiting visual signals for vessels engaged in 
diving operations in accordance with 33 CFR 83.27(e). The exact 
timeframe that will be required to complete diving and salvage 
operations is unknown, but the Coast Guard estimates that it may take 
21 days from beginning of salvage operations until the channel is 
returned to pre-Hurricane Florence conditions.

    Dated: September 26, 2018.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2018-21276 Filed 9-28-18; 8:45 am]
 BILLING CODE 9110-04-P


