01-18681. Regulated Navigation Area; Cape Fear River and Northeast Cape Fear River, Wilmington, NC

AGENCY:

Coast Guard, DOT.

ACTION:

Interim rule; request for comments.

SUMMARY:

The Coast Guard is establishing a Regulated Navigation Area (RNA) for the Cape Fear River and Northeast Cape Fear River. This action is necessary because of the extensive channel-deepening project involving dredging, drilling, and blasting being undertaken by the U. S. Army Corps of Engineers. The RNA is needed to ensure the safety of vessels transiting the Cape Fear River and Northeast Cape Fear River during dredging, drilling, and blasting operations associated with the deepening project.

DATES:

This interim rule becomes effective on August 1, 2001. Comments must be received on or before October 25, 2001.

ADDRESSES:

You may mail comments and related material to the Waterways Management Branch (CGD05-01-006), Coast Guard Marine Safety Office Wilmington, 1502 23rd Street, Wilmington, NC 28405. Or deliver comments to the Marine Safety Office at the same address between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

The Waterways Management Branch of Coast Guard Marine Safety Office Wilmington maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD05-01-006) and are available for inspection or copying at the Coast Guard Marine Safety Office Wilmington, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ensign David Dixon, Asst. Chief, Port Operations Department, Coast Guard Marine Safety Office Wilmington at [phone], or the Waterways Management Branch at [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard has added a provision to the interim rule that was not contained in the Notice of Proposed Rulemaking. For waterway traffic management purposes, the Coast Guard is requesting that the master, owner, or operator of a vessel meeting the requirements for notice of arrival under 33 CFR 160.207 provide notice to the COTP at least 48 hours before entering the RNA.

The Coast Guard is evaluating whether it is necessary to make this provision mandatory. We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-01-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Regulatory Information

On May 31, 2001, we published a NPRM entitled Regulated Navigation Area; Cape Fear River and Northeast Cape Fear River, Wilmington, North Carolina in the Federal Register (66 FR 29524). We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

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. Work on the channel deepening project is scheduled to begin on August 1, 2001. There are many significant safety concerns associated with the drilling, blasting, and dredging operations being undertaken as part of the channel-deepening project. The maritime industry and other users of the Cape Fear River and Northeast Cape Fear River were consulted by the U.S. Coast Guard and the U.S. Army Corps of Engineers at various fora before developing the proposed rule. The parameters of the RNA are a direct result of the comments and input received from the maritime industry, other users of the waterway, and the U.S. Army Corps of Engineers. Therefore, the Coast Guard finds that it is in the public interest to have the regulation in place on August 1, 2001 when operations resume. In addition, the Coast Guard will provide advance notification of the RNA via Broadcast Notice to Mariners or Local Notice to Mariners.

Background and Purpose

The Cape Fear River and Northeast Cape Fear River are the areas to be designated as a RNA. The RNA is to enhance vessel safety during the extensive channel-deepening project being undertaken by the U. S. Army Corps of Engineers, which involves dredging, drilling and blasting in these areas. Current channel depths restrict the full economy of existing and future generations of deep draft vessels. This project, which is expected to last approximately six years (completion is expected by 2006), will deepen the existing channel of 25 feet at the upstream limits of the deepening project and 40 feet at the entrance channel to 34 feet and 44 feet, respectively, to accommodate the deeper draft vessels.

Dredging work within the RNA will be conducted in five distinct areas: Ocean Bar II, Horseshoe Shoal, Passing Lane & Anchorage Basin, Big Island, and the Northeast Cape Fear River. Drilling or blasting is expected to occur within the Passing Lane & Anchorage Basin, Big Island, and the Northeast Cape Fear River work areas. Drilling and blasting is not expected to occur at the Ocean Bar II and Horseshoe Shoal work areas although dredging will still take place. During the project, the RNA will impose channel restrictions and other safety measures to facilitate the dredging operations and enhance navigation safety. The area has been and will continue to be available for use by the general public.

Discussion of Comments

On May 31, 2001, we published a notice of NPRM entitled Regulated Navigation Area; Cape Fear River and Northeast Cape Fear River, Wilmington, North Carolina in the Federal Register (66 FR 29524). We received one comment. The comment focused on the necessity of communications between waterway users and the vessels conducting drilling, blasting, and dredging operations in order to keep disturbances to operations and vessel traffic to a minimum. The Coast Guard agrees. The rule requires and encourages communications between vessels transiting the RNA and the vessels conducting drilling, blasting, and dredging operations.

Discussion of Interim Rule

The interim rule adds a provision. For waterway traffic management purposes, the Coast Guard is requesting that the master, owner, or operator of a vessel that meets the requirements for notice of arrival under 33 CFR 160.207 provide notice to the COTP at least 48 hours before entering the RNA. The requested notice is the same notice required by 33 CFR 160.207 and will meet the reporting requirement contained in 33 CFR 160.207.

This provision is necessary because of the dynamic nature of dredging, drilling, and blasting operations in the Cape Fear River. Drilling and blasting operations in particular require detailed planning to minimize traffic interruptions. For example, once a drill barge commences operations, explosive charges are inserted into the river bottom. These charges are connected to the drill barge by several wires. Although vessel traffic may continue to pass the blast site in this situation, the drill barge is not able to move off station. In some cases, the blast site may be well into the navigable channel, potentially delaying deep draft vessel traffic. For this reason, every effort will be made to schedule a blast between transits of deep draft vessels to minimize delays. The increased notice of arrival will allow the Marine Safety Office, Wilmington, the U.S. Army Corps of Engineers, and the blasting contractor, to coordinate blast times and surveys, taking into account tidal concerns, and safety restrictions.

In addition, the Coast Guard added language to the effective period terminating the rule in 2006, added a start reference point for measuring miles and defined miles in terms of nautical miles.

Regulatory Evaluation

This interim rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

(1) This rule only affects a limited area of water for limited periods of time. Vessels will only be restricted from transiting the work areas during blasting operations. The estimated delays resulting from blasting are expected to last no longer than sixty (60) minutes and occur no more than two (2) times daily in any one area.

(2) Requiring vessels over 300 gross tons and tugs with tows to contact the COTP 12 hours before vessel movement within the RNA will permit the COTP to review additional traffic management considerations for vessels which are tidal dependent or draft restrictive.

(3) Requesting 48-hour notice of arrival, will enable the Coast Guard to consider additional traffic management considerations for vessels which are tidal dependant or draft restrictive.

(4) If deemed necessary, the Captain of the Port, Wilmington may, upon written request, authorize a deviation from any regulation in this section if it is found that the proposed operations can be done safely. A written application for deviation must be received not less than 48-hours before intended operation and must state the need and describe the proposal.

(5) Advance notifications will be made to the local maritime community by Broadcast Notices to Mariners, Local Notices to Mariners, facsimile, and at Cape Fear Waterways Management Council meetings.

(6) Based upon discussions with and comments received from the maritime industry, other users of the waterway, and the U.S. Army Corps of Engineers, the regulations have been narrowly tailored in scope to impose the least impact on maritime interests yet provide the level of safety deemed necessary.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this interim rule would have a significant economic impact on a substantial number of small entities. 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.

This interim rule would affect the following entities, some of which might be small entities: Shipping companies, towing companies, dredging companies, commercial fishing vessels and recreational vessels. This interim rule was preceded by a NPRM. One comment was received by a small entity regarding this rule. The comment focused on the necessity of communications between waterway users and the vessels conducting drilling, blasting, and dredging operations in order to keep disturbances to operations and vessel traffic to a minimum. The Coast Guard agrees. The rule requires and encourages communications between vessels transiting the RNA and the vessels conducting drilling, blasting, and dredging operations.

For the reasons stated in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605 (b) that this interim rule will not have a significant economic impact on a substantial number of small entities.

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.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), in the NPRM we offered to assist small entities in understanding the proposed rule so that they could better evaluate its effects on them and participate in the rulemaking process.

If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS David Dixon, Asst. Chief, Port Operations, Coast Guard Marine Safety Office Wilmington at [phone] or the Waterways Management Branch at [phone].

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).

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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 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.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Environment

The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. This interim rule fits paragraph 34(g) as it establishes a Regulated Navigation Area. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

Indian Tribal Governments

This interim 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.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and record keeping 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

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(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

2. Add § 165.540 immediately after § 165.530 to read as follows:

§ 165.540

Regulated Navigation Area; Cape Fear River, Northeast Cape Fear River, Wilmington, North Carolina.

(a) Description of the Regulated Navigation Area (RNA). The RNA encompasses all waters of the Cape Fear River and Northeast Cape Fear River from the intersection of Bald Head Shoal Channel and Smith Island Channel (centerline coordinates Latitude 33°52′24.028″ N, Longitude 78°00′29.624″ W (NAD 83)) to mile 26.7 on the Northeast Cape Fear River.

(b) Work areas. Dredging work within the RNA will be conducted in five distinct areas: Ocean Bar II, Horseshoe Shoal, Passing Lane & Anchorage Basin, Big Island, and the Northeast Cape Fear River. Drilling or blasting is expected to occur within the Passing Lane & Anchorage Basin, Big Island, and the Northeast Cape Fear River work areas. The blast sites within the RNA, will be identified and made available to the public through: Broadcast Notices to Mariners or Local Notices to Mariners (Local Notices to Mariners are available on-line at www.navcen.uscg.gov/​lnm/​d5/​); direct contact with the control vessel on channel 16 VHF-FM; direct contact with the contractor; or through the Captain of the Port on VHF marine Band Radio, channels 13 and 16; or at telephone number [phone]. In addition, dredge and blasting companies will have a control vessel present at the site of each blast.

(c) Enforcement period. This section will be enforced during the months of August, September, October, November, December, and January, each year. This rule will expire on January 31, 2006.

(d) Definitions.

Active work area means a work area in which blasting, drilling, or dredging operations are currently taking place.

Blast site means the area where explosive material is handled during loading, including the perimeter formed by the loaded blast holes and fifty (50) feet (15.2 meters) in all directions from loaded holes.

Blasting operations means the detonation of explosives on the river bottom.

Captain of the Port means the Coast Guard officer designated by the Commandant to command the Captain of the Port Zone as described in 33 CFR 3.25-20.

Control vessel means the vessel at an active work area which coordinates operations within the active work area.

Hangfire means a blast that fails to detonate at initiation, but detonates at a later time.

Mile means measured as nautical miles.

Misfire means a blast that fails to detonate completely after an attempt at initiation, also the explosive material that failed to detonate as planned.

RNA means Regulated Navigation Area.

Work area means those places within the RNA where dredging, drilling, and blasting shall be conducted.

(e) Description of work areas in the RNA. (1) Ocean Bar II, mouth of Cape Fear. The work area includes: Part of Bald Head Shoal Channel, Smith Island Channel, Baldhead Caswell Channel, Southport Channel, Battery Island Channel, Lower Swash Channel, and the majority of Snows Marsh Channel. The downstream end of the work area (centerline coordinates: Latitude 33° 50′43.668″N, Longitude 78° 01′40.068″W (NAD 1983)) is located southeast of Cape Fear River Channel Lighted Buoy 8 (LL 30350), approximately 2,560 feet east of the centerline of the existing Bald Head Shoal Channel. Upstream end of the work area is located 1,200 feet downstream of the intersection of Snows Marsh Channel and Horseshoe Shoal Channel at turn six (mile 6.5, approximately 1,150 feet downstream of Cape Fear River Channel Lighted Buoy 25 (LL 30530/39965)).

(2) Horseshoe Shoal. The work area includes: Horseshoe Shoal Channel and part of Snows Marsh Channel. Downstream end of the work area is located 1,200 feet downstream of the intersection of Snows Marsh Channel and Horseshoe Shoal Channel (mile 6.5, approximately 1,150 feet downstream of Cape Fear River Channel Lighted Buoy 25 (LL 30530/39965)). Upstream end of the work area is located at the intersection of Horseshoe Shoal Channel and Reaves Point Channel (mile 7.7, at about Cape Fear River Channel Lighted Buoy 27 (LL 30550/39945)).

(3) Big Island. The work area includes: Part of Keg Island Channel, Lower Big Island Channel, Upper Big Island Channel, and part of Lower Brunswick Channel. Downstream end of the work area is approximately 2,230 feet upstream of the intersection of Upper Lilliput Channel and Keg Island Channel (mile 16.2, approximately 1,320 feet downstream of Cape Fear River Channel Lighted Buoy 46 (LL 30765) and approximately 2,300 feet upstream of Cape Fear River Channel Lighted Buoy 44 (LL 30750)). Upstream end of the work area is approximately 2,680 feet upstream of intersection of Upper Big Island Channel and Lower Brunswick Channel (mile 18.7, approximately 1,620 feet upstream of Cape Fear River Channel Lighted Buoy 56 (LL 30830) and approximately 590 feet downstream of the Carolina Power & Light Company (CP&L) overhead power line crossing).

(4) Passing Lane and Anchorage Basin. There are two separate work areas for this contract, separated by the Big Island Contract.

(i) Passing Lane work area is located immediately downstream of the Big Island contract work area. The work area includes: Reaves Point Channel, Lower Midnight Channel, Upper Midnight Channel, Lilliput Channel, and part of Keg Island Channel. Downstream end of Passing Lane work area is the intersection of Horseshoe Shoal Channel and Reaves Point Channel (mile 7.7, at about Cape Fear River Channel Lighted Buoy 27 (LL 30550/39945)). Upstream end of the Passing Lane work area is approximately 2,230 feet upstream of intersection of Upper Lilliput Channel and Keg Island Channel (mile 16.2, approximately 1,320 feet downstream of Cape Fear River Channel Lighted Buoy 46 (LL 30765) and approximately 2,300 feet upstream of Cape Fear River Channel Lighted Buoy 44 (LL 30750)).

(ii) Anchorage Basin work area is located immediately upstream of the Big Island contract work area. The work area includes: Part of Lower Brunswick Channel, Fourth East Jetty Channel, Between Channel, and Anchorage Basin Channel. Downstream end of Anchorage Basin work area is approximately 2,680 feet upstream of intersection of Upper Big Island Channel and Lower Brunswick Channel (mile 18.7, approximately 1,620 feet upstream of Cape Fear River Channel Lighted Buoy 56 (LL 30830) and approximately 590 feet downstream of the CP&L overhead power line crossing). Upstream end of Anchorage Basin work area is the Cape Fear Memorial Bridge (mile 23.6).

(5) Northeast Cape Fear River. The downstream end of the work area is the Cape Fear Memorial Bridge (mile 23.6). Upstream end of the work area (approximately mile 26.7) is on the Northeast Cape Fear River and is approximately 700 feet upstream of the turning basin located opposite Koch Sulfur Products Co. and approximately 90 feet downstream of the submerged gas pipeline crossing.

(f) Regulations. (1) Blasting, drilling, and dredging operations raise many safety issues for vessels transiting the RNA. All mariners are reminded to exercise caution while transiting or operating in the RNA.

(2) Active work areas, control vessels, and blast sites will be identified via Broadcast Notices to Mariners or Local Notices to Mariners. The Local Notice to Mariners is available on-line at www.navcen.uscg.gov/​lnm/​d5/​. Control vessels shall monitor channel 16 VHF-FM.

(3) The following requirements apply to all vessels.

(i) All vessels shall inform themselves of the active work areas prior to entering the RNA.

(ii) All vessels shall contact and receive permission from the control vessel for that work area before entering the active work area.

(iii) All vessels transiting an active work area shall do so at no wake speed or the minimum speed necessary to maintain steerage.

(iv) During blasting operations all vessels are prohibited from entering an area of 500 yards surrounding the blast site. Upon notification of a misfire or hangfire, all vessels underway in the RNA shall proceed to clear the active work area in which the misfire or hangfire occurred.

(4) Vessels over 300 gross tons and tugs with tows are required to contact the COTP 12 hours before vessel movement within the RNA.

(5) Vessels meeting the notice of arrival requirements under 33 CFR 160.207 are encouraged to notify the COTP at least 48-hours before the vessel enters the RNA to facilitate scheduling and minimize delays. Updates are encouraged at least 12 hours before arriving at the RNA boundaries. The COTP may delay entry into the RNA to accommodate other commercial traffic.

(6) Vessels of 300 gross tons or greater shall be prohibited from entering the RNA when they are advised that a misfire or hangfire has occurred.

(7) For any vessel with another vessel/barge in tow transiting an active work area, the hawser or wire length of the tow shall not exceed 275 feet, measured from the towing bit on the tug to the point where the hawser or wire connects with the towed vessel or barge.

(8) Vessels of 300 gross tons or greater and tugs with tows, shall, prior to entering the RNA, ensure that they have sufficient propulsion and directional control to safely navigate the RNA under the prevailing conditions.

(9) Vessels of 300 gross tons or greater and tugs with tows are prohibited from meeting or overtaking vessels of 300 gross tons or greater or tugs with tows in active work areas or within one nautical mile of an active work area.

(10) The Captain of the Port, Wilmington may, upon written request, authorize a deviation from any regulation in this section if it is found that the proposed operations can be done safely. An application for deviation must be received not less than 48 hours before intended operation and must state the need and describe the proposal.

Dated: July 16, 2001.

T.W. Allen,

Vice Admiral, USCG, Commander, Fifth Coast Guard District.