[Federal Register Volume 66, Number 105 (Thursday, May 31, 2001)]
[Proposed Rules]
[Pages 29524-29527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13644]



[[Page 29524]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD 05-01-006]
RIN 2115-AE84


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

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to establish 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: Comments and related material must reach the Coast Guard on or 
before July 2, 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, will become part of 
this docket and will be available for inspection or copying at 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 
(910) 772-2208, or the Waterways Management Branch at (910) 772-2180.

SUPPLEMENTARY INFORMATION:

Request for Comments

    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 (CGD 05-01-
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 
8\1/2\ 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 proposed rule in view of them.
    The Coast Guard is shortening the comment period on this regulation 
to 30 days. This proposed regulation is necessary because of the safety 
concerns associated with the extensive channel deepening project. The 
drilling, blasting, and dredging is scheduled to begin on 01 August 
2001. There is insufficient time to publish a rule 30 days before the 
project begins and provide for a comment period longer than 30 days. It 
is in the public interest to have the regulation in place on 01 August 
2001 when operations resume.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Coast Guard Marine Safety Office 
Wilmington at 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.

Background and Purpose

    The Cape Fear River and Northeast Cape Fear River are the proposed 
areas to be designated as a RNA. The proposed 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 twenty five 
(25) feet at the upstream limits of the deepening project and forty 
(40) feet at the entrance channel to thirty four (34) feet and forty 
four (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. The marine industry, and other users of the Cape 
Fear River and Northeast Cape Fear River, have been consulted by the U. 
S. Coast Guard and the U. S. Army Corps of Engineers at various fora 
throughout the past year. The parameters of the RNA are a direct result 
of the comments received from the marine industry, and the other users 
of the waters, and information obtained from the U. S. Army Corps of 
Engineers.

Discussion of Proposed Rule

    The proposed RNA encompasses: All waters of the Cape Fear River and 
Northeast Cape Fear River from the Bald Head Shoal Channel (Entrance 
Channel) to mile 30.7 on the Northeast Cape Fear River.
    This proposed rule is necessary to safeguard marine traffic from 
the dangers of the dredging, drilling, and blasting associated with the 
deepening project. Because of the safety issues involved, all mariners 
are reminded to exercise caution while transiting or operating in the 
RNA. The active work areas, control vessels, and blast sites will be 
identified via Broadcast Notice to Mariners or Local Notice to 
Mariners. Control vessels shall monitor VHF-FM 16.
    The regulations are divided between vessel types. All vessels will 
be required to: inform themselves of the active work areas; contact and 
receive permission from the control vessel for that work area before 
entering the active work area; transit active work areas at no wake 
speed or the minimum speed necessary to maintain steerage; during 
blasting operations all vessels are prohibited from entering an area of 
500 yards surrounding the blast site; and 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. 
These requirements are to provide for safe navigation within the RNA.
    For waterway traffic management purposes, vessels over 300 gross 
tons and tugs with tows will be required to contact the COTP 12 hours 
before vessel movement within the RNA.

[[Page 29525]]

    Specific additional restrictions are also proposed for certain 
vessels operating or transiting within the RNA. Vessels of 300 gross 
tons or greater and tugs with tows: will, prior to entering the RNA, 
ensure that they have sufficient propulsion and directional control to 
safely navigate the RNA under the prevailing conditions; will be 
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. Vessels of 300 gross tons or greater will 
be prohibited from entering the RNA when they are advised that a 
misfire or hangfire has occurred. For any vessel with another vessel/
barge in tow transiting an active work area, the hawser or wire length 
of the tow must 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.
    The proposed RNA will only be effective during the months of 
August, September, October, November, December and January. If there is 
a need to extend the proposed RNA beyond those months, we will issue a 
Temporary Final Rule to cover that additional time period. Publication 
of these Temporary Final Rules will be made in advance in the Federal 
Register, as well as through Local Broadcast Notice to Mariners.
    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.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 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).
    For the following reasons, we expect the economic impact of this 
proposed rule to be so minimal that a full Regulatory Evaluation under 
paragraph 10e of the regulatory policies and procedures of DOT is 
unnecessary.
    (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) 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.
    (4) Advance notifications will be made to the local maritime 
community by the Local Notice to Mariners, facsimile, marine 
information broadcasts, and at Cape Fear Waterways Management Council 
meetings.
    (5) 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 proposed 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 proposed 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.
    For the reasons stated in the Regulatory Evaluation section above, 
the Coast Guard certifies under 5 U.S.C. 605 (b) that this Notice of 
Proposed Rulemaking will not have a significant economic impact on a 
substantial number of small entities. This proposed 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.
    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), we want to assist small 
entities in understanding this proposed rule so that they can 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 (910) 772-2208 or the Waterways Management Branch at 
(910) 772-2180.

Collection of Information

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

Federalism

    We have analyzed this proposed rule under Executive Order 13132 and 
have determined that this rule does not have implications for 
federalism under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This proposed rule would not impose an unfunded mandate.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically

[[Page 29526]]

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 
proposed rule and concluded that, under figure 2-1, paragraph 34(g), of 
Commandant Instruction M16475.lC, this proposed rule is categorically 
excluded from further environmental documentation. This 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 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.

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 proposes 
to amend 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 and 160.5; 49 CFR 1.46.

    2. Add Sec. 165.540 to read as follows:


Sec. 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 Bald Head Shoal Channel (Entrance Channel) to mile 30.7 
on the North East 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 Notice to Mariners or Local 
Notice to Mariners; 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 (910) 772-2200. In addition, dredge and blasting 
companies will have a control vessel present at the site of each blast.
    (c) Effective period. This section is effective during the months 
of August, September, October, November, December, and January, each 
year.
    (d) Definitions.
    Active work area means a work area in which blasting, drilling, or 
dredging operations are currently taking place.
    Blasting operations means the detonation of explosives on the river 
bottom.
    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.
    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 part 3 subpart 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 the distance from Bald Head Shoal Channel (Entrance 
Channel) to a point up river. It does not mean there is a physical aid 
to navigation in the channel marking the distance. Miles are measured 
as statute 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 deg. 50'43.668"N, Longitude 78 deg.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 intersection of Snows Marsh Channel 
and Horseshoe Shoal Channel at turn six (mile 7.5, 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 intersection of Snows Marsh 
Channel and Horseshoe Shoal Channel (mile 7.5, 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 8.9, 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 18.6, 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 21.5, 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 8.9, 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

[[Page 29527]]

intersection of Upper Lilliput Channel and Keg Island Channel (mile 
18.6, 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 21.5, 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 27.2).
    (5) Northeast Cape Fear River. The downstream end of the work area 
is the Cape Fear Memorial Bridge (mile 27.2). Upstream end of the work 
area (approximately mile 30.7) 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 Notice to Mariners or Local Notice to 
Mariners. 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 of 300 gross tons or greater shall be prohibited from 
entering the RNA when they are advised that a misfire or hangfire has 
occurred.
    (6) 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.
    (7) 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.
    (8) 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.
    (9) Waiver. 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: May 18, 2001.
T.C. Paar,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 01-13644 Filed 5-30-01; 8:45 am]
BILLING CODE 4910-15-U