[Federal Register Volume 84, Number 64 (Wednesday, April 3, 2019)]
[Rules and Regulations]
[Pages 12933-12936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06400]


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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: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 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 Neo-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 April 1 through April 30, 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. Entry of vessels or persons into this safety zone is prohibited 
unless specifically authorized by the Captain of the Port (COTP) North 
Carolina or designated representative.

DATES: This rule is effective without actual notice from April 3, 2019, 
through May 5, 2019. For the purposes of enforcement, actual notice 
will be used from April 1, 2019, through April 3, 2019.

ADDRESSES: To view documents mentioned in this preamble as being

[[Page 12934]]

available in the docket, go to https://www.regulations.gov, type USCG-
2018-1067 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, 
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 Information and Regulatory History

    On November 14, 2018, the North Carolina State Port Authority 
notified the Coast Guard that they will be transporting one pre-
assembled Neo-Panamax container crane up the Cape Fear River to the 
North Carolina State Port in Wilmington, North Carolina, and offloading 
it. Due to crane preconstruction and vessel travel times, the crane 
arrival time was not set. 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. In response, on January 31, 2019, the 
Coast Guard published a notice of proposed rulemaking (NPRM) titled 
Safety Zone; Cape Fear River, Wilmington, NC (84 FR 619). There, we 
stated why we issued the NPRM, and invited comments on our proposed 
regulatory action related to arrival of a new Neo-Panamax container 
crane. No comments were received during our comment solicitation period 
which ran through March 4, 2019. During the comment period, the North 
Carolina State Port Authority requested a new potential vessel arrival 
period from April 1 through April 30, 2019, instead of March 20 through 
April 15, 2019, as proposed in the NPRM.
    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 
because immediate action is needed protect persons, vessels, and the 
marine environment on the navigable waters of the Cape Fear River 
during transport and offload of the container crane.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP North Carolina has 
determined that potential safety hazards associated with the arrival of 
a new Neo-Panamax container crane would be a safety concern for anyone 
transiting the Cape Fear River. The purpose of this rule is to protect 
persons, vessels, and the marine environment on the Cape Fear River 
during transport and offload of the container crane.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published 
January 31, 2019. There is a minor change in the regulatory text of 
this rule from the proposed rule, shifting the vessel's arrival period. 
The vessel transporting the container crane will arrive sometime from 
April 1 through April 30, 2019, instead of March 20 through April 15, 
2019, as proposed in the NPRM. In addition, the term Post-Panamax has 
been changed to Neo-Panamax to accurately describe the type of 
container crane being delivered.
    This rule establishes a safety zone on a portion of the Cape Fear 
River to be enforced during the transit of a vessel transporting one 
pre-assembled Neo-Panamax container crane up the Cape Fear River from 
April 1 through April 30, 2019, and offloading the container within 
five days after transit. The currently scheduled transit date is April 
6, 2019, and the currently scheduled offload date is April 8, 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 includes 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 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.

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

[[Page 12935]]

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 safety zone. Vessel traffic will not be 
allowed to enter or transit portions of the Cape Fear River for 2 non-
consecutive days from April 1 through May 5, 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 received 0 comments from the Small Business 
Administration on this rulemaking. 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.

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 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. 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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.


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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 Neo-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 April 1 through April 30, 2019;
    (2) Zone 2 during offload of the Neo-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: March 28, 2019.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2019-06400 Filed 4-2-19; 8:45 am]
 BILLING CODE 9110-04-P


