[Federal Register Volume 87, Number 58 (Friday, March 25, 2022)]
[Proposed Rules]
[Pages 17047-17050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06339]


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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: Supplemental 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 navigable 
waters, by establishing a new offshore anchorage, relocating the 
existing explosives anchorage and amending the anchorage regulations. 
The purpose of this supplemental 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, North Carolina. We 
invite your comments on this supplemental proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before April 25, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2020-0216 using the Federal Decision Making 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 Lieutenant Gregory Kennerley, Sector 
North Carolina, U.S. Coast Guard; telephone (910) 772-2230, email 
<a href="/cdn-cgi/l/email-protection#dd9aafb8bab2afa4f390f396b8b3b3b8afb1b8a49da8aebebaf3b0b4b1"><span class="__cf_email__" data-cfemail="e4a39681838b969dcaa9caaf818a8a819688819da491978783ca898d88">[email protected]</span></a>; or Mr. Matthew Creelman, Waterways 
Management Branch, Fifth Coast Guard District, U.S. Coast Guard; 
telephone (757) 398-6225, email <a href="/cdn-cgi/l/email-protection#86cbe7f2f2eee3f1a8cda8c5f4e3e3eaebe7e8b4c6f3f5e5e1a8ebefea"><span class="__cf_email__" data-cfemail="86cbe7f2f2eee3f1a8cda8c5f4e3e3eaebe7e8b4c6f3f5e5e1a8ebefea">[email protected]</span></a>.

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
NPRM Notice of proposed rulemaking
SNPRM Supplemental notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On May 8, 2020, the Coast Guard published a notification 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, North 
Carolina, and to increase the size and relocate the existing Lockwood's 
Folly Inlet explosives anchorage. After receiving favorable comments, 
the Coast Guard decided to propose the rulemaking. On August 17, 2021, 
the Coast Guard published a notice of proposed rulemaking (NPRM) in 
Federal Register (86 FR 45936), stating why we issued the NPRM, and 
invited comments on our proposed anchorage. During the comment period 
that ended on October 18, 2021, we received five comment letters in 
response. The Coast Guard is now issuing this supplemental notice of 
proposed rulemaking (SNPRM) to solicit comments on changes made to the 
NPRM.
    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 Comments, Changes, and Proposed Rule

    As noted above, we received five comments on our NPRM published 
August 17, 2021. One was in full support of the proposed rule, one had 
concerns over possible area use conflicts with offshore wind energy 
development, and three were regarding potential conflict with the 
anchorage and an artificial reef. The following sections detail the 
concerns raised by these comments. As a result, the Coast Guard has 
issued this SNPRM with proposed changes to the regulatory text of the 
rule. Specifically, we propose the western boundary and coordinates of 
the proposed Explosives Anchorage B be moved 1000 yards eastward to 
avoid a conflict with a North Carolina Division of Marine Fisheries 
Artificial Reef (AR-455). The remainder of the proposed rule remains 
unchanged.

A. Offshore Wind Development

    One commenter raised concerns that the proposed anchorage would 
take up an area that could be utilized for offshore wind energy 
development, and by doing so, would deprive the local economy of 
investment and energy resulting from the development. The Coast Guard 
finds this comment to be not applicable to this particular rulemaking 
as the proposed anchorage area does not overlap or limit any known wind 
energy lease area as published by the Bureau of Ocean Energy Management 
(BOEM), the lead agency in the U.S. offshore wind development. The 
Coast Guard works closely with BOEM in the planning of these offshore 
lease areas and has confirmed the area proposed for this rule is not 
under consideration for wind development.

B. Artificial Reef

    There were three comments received by the Coast Guard with concerns 
that the westernmost boundary of the proposed Explosives Anchorage B 
overlapped the location of an artificial reef, North Carolina Division 
of Marine Fisheries' Reef (AR-455). This overlap reveals potential 
hazards as anchoring vessels could damage the reef or possibly foul 
their anchors on the underwater structures. The Coast Guard agreed with 
these concerns and reached out to the North Carolina Division of Marine 
Fisheries to discuss a new agreeable boundary for the anchorage that 
would not conflict with AR-455. After reviewing the location of each of 
the underwater features within AR-455, the Coast Guard proposes to move 
the western boundary of Anchorage B 1000 yards to the east of AR-455. 
This distance would prevent any vessel anchored within Anchorage B from 
damaging the reef or interfering with other vessels visiting the reef. 
This would reduce the overall size of anchorage area initially 
proposed, but the Coast Guard believes there is still

[[Page 17048]]

sufficient area within the anchorage to meet anchorage needs.

C. Proposed Rule

    The intent of this proposed rule remains unchanged. This proposed 
rule would formally establish an anchorage ground, Anchorage A, 
approximately eight nautical miles southwest of the Oak Island Light. 
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. The specific coordinates for these 
proposed anchorage grounds 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 https://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. This SNPRM has not been designated a ``significant 
regulatory action'' under Executive Order 12866. Accordingly, the SNPRM 
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 five nautical 
miles further offshore increasing separation distances between vessels 
laden with explosives and the public, and expand its size from 
approximately five to seven 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 proposed 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 proposed 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 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 potential effects of 
this proposed 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

[[Page 17049]]

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 L[59] 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.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2020-0216 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. 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.
    Personal information. 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 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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: 33 U.S.C. 471, 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, N.C.

    (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 2 to Paragraph (a)(2)
------------------------------------------------------------------------
              Latitude                             Longitude
------------------------------------------------------------------------
33[deg]47'59.09'' N                   78[deg]17'14.00'' 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]17'14.00'' W
------------------------------------------------------------------------

    (b) Definitions. As used in this section--
    Cargoes of particular hazard means ``cargo of particular hazard'' 
as defined in Sec.  126.3 of this title.
    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 title.
    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 defined and 
established in this section, 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 (d) 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

[[Page 17050]]

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: March 10, 2022.
Laura M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-06339 Filed 3-24-22; 8:45 am]
BILLING CODE 9110-04-P


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