[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: [email protected].
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]
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