[Federal Register Volume 84, Number 177 (Thursday, September 12, 2019)]
[Rules and Regulations]
[Pages 48059-48062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19806]


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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: 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 near Wilmington, North 
Carolina. This temporary safety zone is intended to restrict vessel 
traffic on the Cape Fear River from September 11, 2019, through 
December 15, 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.

DATES: This rule is effective without actual notice from September 11, 
2019, through September 12, 2019. For the purposes of enforcement, 
actual notice will be used from September 12, 2019 through December 15, 
2019. This rule will be enforced from 6:30 a.m. to 2:30 p.m. on 
September 11 through 13, September 24 through 26, October 15 through 
17, and October 29 through 31, 2019. These times and dates may change 
due to weather and equipment delivery changes.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0302 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket

[[Page 48060]]

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: 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 Information and Regulatory History

    On April 23, 2019, 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. In response, on May 24, 2019, the Coast Guard 
published a notice of proposed rulemaking (NPRM) titled Safety Zone; 
Cape Fear River, Wilmington, NC (84 FR 24061) that proposed a safety 
zone within 100 yards of the power transmission line crossing. There, 
we stated why we issued the NPRM and invited comments on our proposed 
regulatory action related to the replacement of power transmission 
lines over the Cape Fear River. No comments were received during our 
comment solicitation period which ran through June 24, 2019. During the 
comment period, Duke Energy requested to change the work period to 
September through mid-December, instead of mid-July through the end of 
October, 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 while 
power transmission lines are replaced over the water.

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 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 Cape Fear River 
while power transmission lines are replaced over the water.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published May 
24, 2019. There is a change in the regulatory text of this rule from 
the proposed rule, shifting the work period. Due to equipment delivery 
delays, Duke Energy changed the work period to September through mid-
December 2019, instead of mid-July through the end of October, as 
proposed in the NPRM.
    Additionally, in paragraph (a), ``Location'' we changed the word 
``areas'' to ``area.''
    This rule establishes a safety zone on a portion of the Cape Fear 
River from September 11 through December 15, 2019, 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 twelve eight-hour days, three days at a time, over four 
separate weeks in order to replace the power transmission lines. Due to 
the nature of the work and the hazards it presents to 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 effected section of the 
river will be closed from 6:30 a.m. through 2:30 p.m. Currently, the 
planned enforcement dates are September 11th through 13th, September 
24th through 26th, October 15th through 17th, and October 29th through 
31st, 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 vessels.

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 duration of the proposed safety zone. Vessels will not be 
allowed to enter or transit a portion of the Cape Fear River during 
active power transmission line replacement as above. Specific 
enforcement dates and 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. Because this portion of 
the Cape Fear River is a high traffic area, we created this rule to 
accommodate smaller vessels so that 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.

[[Page 48061]]

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 no 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 Environmental Planning COMDTINST 5090.1 (series), 
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 96 hours over 12 
separate days that will prohibit entry within 100 yards of power 
transmission lines over the Cape Fear River near Wilmington, NC. It is 
categorically excluded from further review under paragraph L60(a) in 
Table 3-1 of U.S. Coast Guard Environmental Planning Implementing 
Procedures 5090.1. 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.

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 area 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

[[Page 48062]]

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 from 6:30 
a.m. to 2:30 p.m. on September 11 through 13, September 24 through 26, 
October 15 through 17, and October 29 through 31, 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: September 9, 2019.
Bion B. Stewart,
Captain, U. S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2019-19806 Filed 9-11-19; 8:45 am]
BILLING CODE 9110-04-P


