[Federal Register Volume 84, Number 101 (Friday, May 24, 2019)]
[Proposed Rules]
[Pages 24061-24063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10886]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0302]
RIN 1625-AA00


Safety Zone: Cape Fear River, Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone on the navigable waters of the Cape Fear River near Wilmington, 
North Carolina. This temporary safety zone is intended to restrict 
vessel traffic on the Cape Fear River from July 15, 2019, through 
October 31, 2019, while work crews replace power transmission lines 
crossing over the river. 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 June 24, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0302 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: 
Matthew.I.Tyson@uscg.mil.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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

II. Background, Purpose, and Legal Basis

    On April 23, Duke Energy provided the Coast Guard with details 
concerning the upgrading of towers and replacement of power 
transmission lines crossing over the Cape Fear River near Wilmington, 
North Carolina, to be conducted from July 15, 2019, through October 31, 
2019. Work will be done on two steel towers located at approximate 
positions 34[deg]08'52'' N, 077[deg]57'14'' W and 34[deg]08'59'' N, 
077[deg]56'56'' W (NAD 1983), and the power transmission lines 
suspended between those towers. This upgrade process will require the 
complete closure of the navigation channel on multiple days during the 
stated upgrade period. A safety zone is proposed within 100 yards of 
the power transmission line crossing. The Captain of the Port (COTP) 
North Carolina has determined that potential safety hazards associated 
with power transmission line replacement work 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 of the Cape Fear River 
during the replacement of power transmission lines crossing over the 
river. The Coast Guard is proposing this rulemaking under authority in 
46 U.S.C. 70034 (previously 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 from July 15, 2019, through October 31, 2019, to be 
enforced while Duke Energy replaces power transmission lines over the 
river. Duke Energy reports its work crews will need to access the 
navigation channel for 12, 8-hour days, 3 days at a time, over 4 
separate weeks, in order to replace the power transmission lines. Due 
to the nature of the work and the hazards it presents to the workers 
and the public, the COTP has identified the need to close that Cape 
Fear River in the vicinity of the power line crossing while this work 
is ongoing. On days the safety zone will be enforced, the affected 
section of the river will be closed from 6:30 a.m. through 2:30 p.m. 
Currently, the planned enforcement dates are July 29th through 31st, 
August 12th through 14th, September 3rd through 5th, and September16th 
through 18th, 2019. These times and dates may change due to weather and 
equipment delivery changes. Exact dates and times will be announced by 
broadcast notice to mariners at least two days prior to each closure. 
This safety zone will include all navigable waters of the Cape Fear 
River within 100 yards of the power transmission line crossing, from 
approximate position 34[deg]08'49'' N, 077[deg]57'32'' W, then 
northeast to 34[deg]09'07'' N, 077[deg]56'41'' W, then south along the 
shoreline to 34[deg]09'03'' N, 077[deg]56'41'' W, then southwest to 
34[deg]08'42'' N, 077[deg]57'28'' W, then north along the shoreline to 
the point of origin. No vessel or person will be permitted to enter the 
safety zone unless specifically authorized by the COTP or a designated 
representative. Vessels with an air draft less than 30 feet will be 
permitted to pass through the safety zone approximately every two hours 
during enforcement, when directed by the Coast Guard or designated 
security

[[Page 24062]]

vessels. 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. Vessels will not be 
allowed to enter or transit a portion of the Cape Fear River for 96 
hours over a 4-week period from July 15, 2019, through October 31, 
2019, during active power transmission line replacement as described in 
the text above. The closures are planned to occur on 12, 8-hour days, 3 
days at a time, over 4 separate weeks. Due to the nature of the work 
and the hazards it presents to the workers and the public, the COTP has 
identified the need to close that Cape Fear River in the vicinity of 
the power line crossing while this work is ongoing. On days the safety 
zone will be enforced, the affected section of the river will be closed 
from 6:30 a.m. through 2:30 p.m. The specific enforcement times for 
channel closures will be broadcast at least 48 hours in advance and 
vessels will be able to transit the Cape Fear River at all other times. 
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. Vessels with an air draft less than 30 feet 
will be permitted to pass through the safety zone approximately every 
two hours during enforcement, when directed by the Coast Guard or 
designated security vessels.

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 would establish a temporary safety 
zone. 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.

G. Protest Activities

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

[[Page 24063]]

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: 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.

0
2. Add Sec.  165.T05-0302 to read as follows:


Sec.  165.T05-0302  Safety Zone; Cape Fear River, Wilmington, NC.

    (a) Location. The following areas is a safety zone: All navigable 
waters of the Cape Fear River within 100 yards of the power 
transmission line crossing, from approximate position 34[deg]08'49'' N, 
077[deg]57'32'' W, then northeast to 34[deg]09'07'' N, 077[deg]56'41'' 
W, then south along the shoreline to 34[deg]09'03'' N, 077[deg]56'41'' 
W, then southwest to 34[deg]08'42'' N, 077[deg]57'28'' W (NAD 1983), 
then north along the shoreline to the point of origin near Wilmington, 
NC.
    (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.
    Work crews means persons and vessels involved in the replacement of 
power transmission lines.
    (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 work crews, entry into or remaining in 
this safety zone 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) Vessels with an air draft less than 30 feet will be permitted 
to pass through the safety zone approximately every two hours during 
enforcement, when directed by the Coast Guard or designated security 
vessels.
    (4) 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.
    (5) 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 Period. This regulation will be enforced for 12, 8-
hour days, 3 days at a time, over 4 separate weeks from July 15, 2019, 
through October 31, 2019. On days the safety zone is being enforced, 
the affected section of the river will be closed from 6:30 a.m. through 
2:30 p.m. The enforcement dates are July 29th through 31st, August 12th 
through 14th, September 3rd through 5th, and September16th through 
18th, 2019. These times and dates may change due to weather and 
equipment delivery changes.
    (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: May 17, 2019.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2019-10886 Filed 5-23-19; 8:45 am]
 BILLING CODE 9110-04-P


