[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)]
[Rules and Regulations]
[Pages 49281-49283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21276]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2018-0920]
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 to minimize risks caused by
vessels transiting near vessels and divers conducting post-Hurricane
Florence recovery operations. Entry of vessels or persons into this
zone is prohibited unless a vessel meets the stated requirements or is
specifically authorized by the Captain of the Port North Carolina
(COTP).
DATES: This rule is effective without actual notice from October 1,
2018, through October 17, 2018. For the purposes of enforcement, actual
notice will be used from September 26, 2018, through October 1, 2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0920 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,
call or email Chief Petty Officer Joshua O'Rourke, Waterways Management
Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC;
telephone 910-772-2227, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
COTP Captain of the Port
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
II. Background Information and Regulatory History
After Hurricane Florence passed over the Cape Fear River, the
National Oceanic and Atmospheric Administration and U.S. Army Corps of
Engineers conducted surveys of the navigable channel to identify
obstructions that may have collected on the river bottom and pose risks
to shipping traffic. The surveys identified a number of potential
obstructions that require further investigation and possible removal.
Operations are scheduled to begin on September 26, 2018. These
operations involve diving in murky water with strong currents, using
heavy-lift equipment on floating platforms, and other inherently risky
activities that require strict safety procedures. Vessels that pass too
close or too quickly increase the risk of these operations. To mitigate
such risks, the COTP is establishing a safety zone around the vessels
conducting diving and salvage operations. This safety zone will move
with the vessels as they transit the river to investigate and remove
obstructions.
The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because to do so would be impracticable and
contrary to the public interest. Waiting to return the waterway to
conditions that accommodate the safe, full resumption of commercial
shipping is contrary to the public interest. It is impracticable to
publish an NPRM because recovery assets will be on scene on or about
September 26, 2018, and the safety zone needs to be in place at that
time to protect vessels and persons in the vicinity of salvage
operations.
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.
Immediate action is needed to protect vessels and persons conducting
diving and salvage operations, as well as vessels transiting nearby,
from the potential hazards associated with these operations.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port North Carolina (COTP) has determined that
potential hazards associated with salvage operations starting on or
about September 26, 2018, will be a safety concern when anyone
approaches within 100 yards of salvage vessels and divers. This rule is
needed to protect personnel and vessels in the navigable waters within
and transiting near the safety zone.
IV. Discussion of the Rule
This rule establishes a moving safety zone that protects vessels
and affiliated divers engaged in post-Hurricane Florence salvage
operations on the navigable waters of the Cape Fear River. The safety
zone includes all navigable waters within 100 yards of vessels actively
engaged in salvage and dive support vessels being used to conduct
salvage operations on the Cape Fear River. No vessel or person will be
permitted to enter the safety zone without obtaining permission from
the COTP or a designated representative. Vessels requesting to enter or
transit the safety zone may contact the Sector North Carolina Command
Center via VHF-FM channel 16 or telephone at 910-362-4015.
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
[[Page 49282]]
flexibility of the safety zone. Because of its size, vessels will
typically be able to safely transit around the zone. In cases where the
location of salvage operations don't allow safe passage without
transiting through the zone, the regulation is written to give the
opportunity for transiting through after coordinating with salvage
operators and the COTP. Moreover, the Coast Guard will issue a
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the
zone updating mariners of the location of current salvage operations.
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 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 above.
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 that is active only during salvage operations that will
prohibit entry within 100 yards of salvage vessels, machinery, and
divers being used to investigate and remove obstructions from the Cape
Fear River. 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: 33 U.S.C. 1231; 50 U.S.C. 191; 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.T05-0920 to read as follows:
Sec. 165.T05-0920 Safety Zone, Cape Fear River, Wilmington, NC.
(a) Location. The following area is a safety zone: All navigable
waters of the Cape Fear River, from surface to bottom, within 100 yards
of:
(1) Any salvage vessel exhibiting visual signals for vessels
restricted in ability to maneuver in accordance with 33 CFR 83.27(b);
and
(2) Any diving vessel exhibiting visual signals for vessels engaged
in diving operations in accordance with 33 CFR 83.27(e).
(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.
[[Page 49283]]
(c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or
designated representative.
(2) To seek permission to enter, contact the COTP or designated
representative via VHF-FM channel 16 or telephone at 910-362-4015 and
comply with all lawful orders or directions given.
(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 section will be enforced any time
salvage vessels are exhibiting visual signals for vessels restricted in
ability to maneuver in accordance with 33 CFR 83.27(b) or any time
diving vessels are exhibiting visual signals for vessels engaged in
diving operations in accordance with 33 CFR 83.27(e). The exact
timeframe that will be required to complete diving and salvage
operations is unknown, but the Coast Guard estimates that it may take
21 days from beginning of salvage operations until the channel is
returned to pre-Hurricane Florence conditions.
Dated: September 26, 2018.
Bion B. Stewart,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2018-21276 Filed 9-28-18; 8:45 am]
BILLING CODE 9110-04-P