[Federal Register Volume 86, Number 156 (Tuesday, August 17, 2021)]
[Proposed Rules]
[Pages 45936-45939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17291]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket Number USCG-2020-0216]
RIN 1625-AA01


Anchorage Grounds; Cape Fear River Approach, North Carolina

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to amend the anchorage 
regulations for Lockwoods Folly Inlet, NC, and adjacent waters, by 
establishing a new offshore anchorage and relocating and amending the 
existing explosives anchorage. The purpose of this proposed rule is to 
improve navigation and public safety by accommodating recent and 
anticipated future growth in cargo vessel traffic and vessel size that 
call on Military Ocean Terminal Sunny Point and the Port of Wilmington, 
NC. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 18, 2021.

ADDRESSES: You may submit comments identified by docket number USCG-
2020-0216 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, call or email Marine Science Technician Chief 
(MSTC) Joshua O'Rourke, Sector North Carolina, U.S. Coast Guard; 
telephone (910) 772-2227, email Joshua.P.Orourke@uscg.mil; or Mr. Jerry 
Barnes, Waterways Management Branch, Fifth Coast Guard District, U.S. 
Coast Guard; telephone (757) 398-6230, email Jerry.R.Barnes@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BOEM Bureau of Ocean Energy Management
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NM Nautical Miles
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On May 8, 2020, the Coast Guard published a notice of inquiry in 
the Federal Register (85 FR 27343) to solicit public comments on 
whether we should initiate a rulemaking to establish an anchorage 
ground offshore in the approaches to the Cape Fear River, NC, and to 
increase the size and relocate the existing Lockwoods Folly Inlet 
explosives anchorage. We received two comment letters in response, both 
endorsing a rulemaking to amend the anchorage regulations as described. 
The Coast Guard is now moving forward with this proposed rulemaking.
    The Cape Fear River supports a diverse marine transportation system 
which includes Military Ocean Terminal Sunny Point, North Carolina 
State Port of Wilmington, and several oil terminals and bulk-handling 
facilities for cement, asphalt products, molasses, liquid chemicals, 
sulfur, fertilizers and liquid sugar. Military Ocean Terminal Sunny 
Point is a Department of Defense facility that stores and ships 
ammunition, dangerous cargo and explosives for United States forces 
worldwide. A federal navigation project provides for a channel 44 feet 
deep from the ocean to a point just south of Southport, NC, and 42 feet 
to the Lower Anchorage Basin and Turning Basin at Wilmington, NC. In 
support of continued port growth and growth in both size and volume of 
vessel traffic, the U.S. Army Corps of Engineers is considering the 
need for major channel depth, width, and alignment changes. These 
include deepening the existing federal navigation channel to the Port 
of Wilmington, extending the ocean entrance channel farther offshore, 
and widening channels in the Cape Fear River where needed.
    At the same time, the demand for offshore wind energy is 
increasing. Plummeting costs, technological advancements, increasing 
demand and great economic potential have combined to make offshore wind 
a promising avenue for adding to a diversified national energy 
portfolio. In 2018, the Bureau of Ocean Energy Management (BOEM) 
developed and sought feedback on a Proposed Path Forward for Future

[[Page 45937]]

Offshore Renewable Energy Leasing on the Atlantic OCS (83 FR 14881, 
April 6, 2018). Offshore the Carolinas, BOEM has identified several 
wind energy lease and call areas and intends to work with the states of 
North Carolina and South Carolina using a regional model to plan and 
analyze these areas for potential future offshore wind leases.
    Traditionally, vessels awaiting entrance and pilotage to the Cape 
Fear River anchor outside the traffic separation scheme west of the sea 
buoy (Cape Fear River Entrance Lighted Whistle Buoy CF). The Coast 
Guard has concerns that as wind energy areas are developed and 
electrical export cables installed, vessel traffic may be displaced or 
funneled into smaller areas, and areas traditionally used for anchoring 
may be impacted or lost. Establishing an adequate and dedicated 
offshore anchorage will preserve areas traditionally used for anchoring 
and alleviate potential hazardous conditions of vessels anchoring in 
the common approaches to the Cape Fear River.
    On January 18, 1969, regulations for the Lockwoods Folly Inlet (33 
CFR 110.170) explosives anchorage were published (34 FR 839) outlining 
the area as an anchorage reserved for the exclusive use of vessels 
carrying explosives. The anchorage is located within 3 nautical miles 
(NM) from shore and in water with charted depths between 32 and 37 
feet. The Coast Guard is concerned that the anchorage does not meet the 
current needs of safe navigation due to the increased size and drafts 
of vessels that call on Military Ocean Terminal Sunny Point and the 
Port of Wilmington, and a better location is possible in the interest 
of navigation and public safety.
    The purpose of this proposed rule is to accommodate recent and 
anticipated future growth in cargo vessel traffic and vessel size that 
call on Military Ocean Terminal Sunny Point and the Port of Wilmington, 
improve navigation and public safety, and to preserve areas 
traditionally used for anchoring.
    The legal basis and authorities for this notice of proposed 
rulemaking are found in 46 U.S.C.70006, 33 CFR 1.05-1, DHS Delegation 
No. 0170.1, which collectively authorize the Coast Guard to propose, 
establish, and define regulatory anchorage grounds.

III. Discussion of Proposed Rule

    This proposed rule would formally establish an anchorage ground, 
Anchorage A, approximately 8 NM southwest of the Oak Island Light, west 
of the pilot boarding area, in an area traditionally used by cargo 
ships for anchoring in the approaches to the Cape Fear River, NC. This 
location is near existing traffic lanes and in naturally deep water 
with charted depths between 40 and 52 feet. This proposed rule also 
includes regulations intended to govern anchoring practices and provide 
the Captain of the Port additional controls over vessel choosing to 
anchor offshore. This proposed rule would also increase the size and 
relocate Lockwoods Folly Inlet explosives anchorage to adjacent 
Anchorage A on its western boundary; and rename it Anchorage B. 
Anchorage B would be approximately 5 NM further offshore than the 
existing anchorage and increase separation distances between vessels 
laden with explosives and the public. The use of Anchorage B would be 
expanded to include vessels carrying or handling dangerous cargo or 
cargoes of a particular hazard in addition to vessels carrying 
explosives; its use would be required for vessels carrying such 
cargoes; and vessels anchored with such cargoes would be required to 
display a visible red flag or light. The specific coordinates for these 
proposed anchorage gounds are included in the proposed regulatory text 
at the end of this document.
    You may find an illustration of the anchorages in the docket where 
indicated under ADDRESSES. Additionally, the anchorage ground is 
available for viewing on the Mid-Atlantic Ocean Data Portal at http://portal.midatlanticocean.org/visualize/. See ``USCG Proposed Areas and 
Studies'' under the ``Maritime'' portion of the Data Layers section.

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).
    This regulatory action determination is based on the size, 
location, and historical vessel traffic data pertaining to the 
anchorage locations. The regulation would designate and preserve an 
approximately 22 square mile deep water area traditionally used by 
cargo ships for anchoring near existing traffic lanes. It would also 
relocate the existing explosives anchorage approximately 5 NM further 
offshore increasing separation distances between vessels laden with 
explosives and the public, and expand its size from approximately 5 to 
7 square miles. This regulatory action provides commercial vessel 
anchorage needs while enhancing the navigation safety, environmental 
stewardship and public safety.

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 use the 
anchorages 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. The towns and communities along 
the Cape Fear River approaches have an economy based on tourism and 
numerous small entities and businesses. The establishment of Anchorage 
A and Anchorage B will increase controls over vessels that currently 
anchor in the general vicinity and increase the distance between 
anchored vessels and the shore and beaches, lessening impacts these 
small entities may currently experience.
    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 call or email the

[[Page 45938]]

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 call or email 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, Rev. 1, associated implementing 
instructions, 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 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 
establishing an anchorage ground, Anchorage A, in an area traditionally 
used by cargo ships for anchoring in the approaches to the Cape Fear 
River, NC; and increasing the size of and relocating the Lockwoods 
Folly Inlet explosives anchorage to an area adjacent to Anchorage A (on 
its western boundary), expanding its use, and renaming it Anchorage B. 
Normally such actions are categorically excluded from further review 
under paragraph L59 of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 1. A preliminary Record of Environmental 
Consideration supporting this determination is available in the docket. 
For instructions on locating the docket, see the ADDRESSES section of 
this preamble. 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 call or email 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 https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, call or email the person 
in the FOR FURTHER INFORMATION CONTACT section of this document for 
alternate instructions.
    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. For more about privacy and submissions in response to this 
document, see DHS's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020). Documents mentioned in this NPRM as being available in 
the docket, and public comments, will be in our online docket at 
https://www.regulations.gov and can be viewed by following that 
website's instructions. We review all comments received, but we will 
only post comments that address the topic of the proposed rule. We may 
choose not to post off-topic, inappropriate, or duplicate comments that 
we receive. 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 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard is 
proposing to amend 33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority: 46 U.S.C. 70006, 2071; 46 U.S.C. 70034; 33 CFR 1.05-
1; Department of Homeland Security Delegation No. 0170.1.

0
2. Revise Sec.  110.170 to read as follows:


Sec.  110.170  Cape Fear, NC.

    (a) The anchorage grounds. All coordinates in this section are 
based on the World Geodetic System (WGS 84).
    (1) Anchorage A. The waters bound by a line connecting the 
following points:

                       Table 1 to Paragraph (a)(1)
------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
33[deg]47'59.09'' N                  78[deg]14'58.67'' W
33[deg]47'59.09'' N                  78[deg]06'24.74'' W
33[deg]46'01.22'' N                  78[deg]06'24.74'' W
33[deg]46'01.22'' N                  78[deg]14'58.67'' W
------------------------------------------------------------------------

    (2) Anchorage B. Explosives Anchorage: The waters bound by a line 
connecting the following points:

                       Table 1 to Paragraph (a)(2)
------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
33[deg]47'59.09'' N                  78[deg]17'49.00'' W
33[deg]47'59.09'' N                  78[deg]14'58.67'' W
33[deg]46'01.22'' N                  78[deg]14'58.67'' W
33[deg]46'01.22'' N                  78[deg]17'49.00'' W
------------------------------------------------------------------------

    (b) Definitions. As used in this section--

[[Page 45939]]

    Cargoes of particular hazard means ``cargo of particular hazard'' 
as defined in Sec.  126.3 of this chapter.
    Class 1 (explosive) materials means Division 1.1, 1.2, 1.3, and 1.4 
explosives, as defined in 49 CFR 173.50.
    Dangerous cargo means ``certain dangerous cargo'' as defined in 
Sec.  160.204 of this chapter.
    U.S. naval vessel means any vessel owner, operated, chartered, or 
leased by the U.S. Navy; and any vessel under the operational control 
of the U.S. Navy or Combatant Command.
    (c) General regulations. (1) Vessels in the Atlantic Ocean near 
Cape Fear River Inlet awaiting berthing space within the Port of 
Wilmington shall only anchor within the anchorage grounds hereby 
defined and established, except in cases of emergency.
    (2) Vessels anchoring under circumstances of emergency outside the 
anchorage areas shall be shifted to new positions within the anchorage 
grounds immediately after the emergency ceases.
    (3) Vessels may anchor anywhere within the anchorage grounds 
provided such anchoring does not interfere with the operations of any 
other vessel at anchorage; except a vessel may not anchor within 1,500 
yards of a vessel carrying or handling dangerous cargoes, cargoes of a 
particular hazard, or Class 1 (explosive) materials. Vessels shall lie 
at anchor with as short of a chain or cable as conditions permit.
    (4) Prior to entering the anchorage grounds, all vessels must 
notify the Coast Guard Captain of the Port Sector North Carolina (COTP) 
via VHF-FM channel 16.
    (5) No vessel may anchor within the anchorage grounds for more than 
72 hours without the prior approval of the COTP. To obtain this 
approval, contact the COTP via VHF-FM channel 16.
    (6) The COTP may close the anchorage grounds and direct vessels to 
depart the anchorage during periods of severe weather or at other times 
as deemed necessary in the interest of port safety or security.
    (7) The COTP may prescribe specific conditions for vessels 
anchoring within the anchorage grounds, including but not limited to, 
the number and location of anchors, scope of chain, readiness of 
engineering plant and equipment, usage of tugs, and requirements for 
maintaining communications guards on selected radio frequencies.
    (d) Regulations for vessels handling or carrying dangerous cargoes, 
cargoes of a particular hazard, or Class 1 (explosive) materials. This 
paragraph applies to every vessel, except U.S. naval vessels, handling 
or carrying dangerous cargoes, cargoes of a particular hazard, or Class 
1 (explosive) materials.
    (1) Unless otherwise directed by the Captain of the Port, each 
commercial vessel handling or carrying dangerous cargoes, cargoes of a 
particular hazard, or Class 1 (explosive) materials must be anchored 
within Anchorage B.
    (2) Vessels requiring the use of Anchorage B must display by day a 
red flag (Bravo flag) in a prominent location and by night a fixed red 
light. In lieu of a fixed red light, by night a red flag may be 
illuminated by spotlight.

    Dated: August 2, 2021.
Laura M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2021-17291 Filed 8-16-21; 8:45 am]
BILLING CODE 9110-04-P


