[Federal Register: October 28, 2003 (Volume 68, Number 208)]
[Rules and Regulations]
[Page 61365-61367]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc03-16]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-03-166]
RIN 1625-AA00
Safety Zone; Hatteras Island, NC
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a safety zone in the vicinity
of a newly created breach in Hatteras Island, NC, caused by heavy surf
during Hurricane Isabel. The U.S. Army Corps of Engineers will be
conducting dredging and filling operations to close the newly created
breach. A safety zone is needed to prevent vessels from traveling on
the waters in the breach during the dredging and filling operations.
DATES: This rule is effective from 12 noon on October 17, 2003, to 5
p.m. on November 1, 2003.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket CGD05-03-166 and are available for
inspection or copying at Coast Guard Marine Safety Office, Wilmington,
NC between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Chuck Roskam,
Project Officer, USCG MSO Wilmington, telephone number (910) 772-2200.
SUPPLEMENTARY INFORMATION:
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. The Coast Guard believes that
the hazards associated with the situation are so severe that immediate
action is necessary to prevent loss of property, serious injury, or
loss of life. 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. Allowing for a comment period is
impracticable and contrary to the public interest, since immediate
action is needed to protect mariners against potential hazards
associated with the dredging and filling operations at Hatteras Island.
However, notification will be made to affected mariners via marine
information broadcasts, and direct contact with agents and vessels
affected by this regulation.
Background and Purpose
Hurricane Isabel eroded a section of Hatteras Island, NC, in effect
creating a breach allowing waters to flow between the Pamlico Sound and
the Atlantic Ocean. Since the storm, local county government
authorities and the U.S. Army Corps of Engineers (ACOE) have been
working to re-establish road access to the entire Island. To accomplish
this goal, the ACOE is planning to conduct operations to fill the
breach. These around-the-clock operations, with associated dredge
piping and vessels operating will present dangers to vessels and
persons operating in the area. The Captain of the Port Wilmington, NC,
is creating a safety zone in order to ensure the safety of workers, and
persons and vessels that might wish to transit the area. The safety
zone will serve to prevent vessels and persons from entering the area,
and thus serve to keep the public safe from the potential hazards
associated with the dredging and filling operations.
Discussion of Rule
The Coast Guard is establishing this safety zone at the new breach
in Hatteras Island, NC, in order to protect vessels and persons from
dangers associated with an ACOE dredging and filling project.
Subsequent to Hurricane Isabel causing this new breach, boaters
continue to make attempts to cross through this new opening between
Pamlico Sound and the Atlantic Ocean. Having a safety zone in place
would serve to keep boaters out of this area while the ACOE conducts
its dredging and filling operations.
Regulatory Evaluation
This 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 Homeland
Security (DHS).
Based on the fact that this new passage between the Pamlico Sound
and the Atlantic Ocean did not exist until the passage of Hurricane
Isabel, and the U.S. Army Corps of Engineers intends to close the
inlet, this rule will not have a significant impact. Any hardships
experienced by persons or vessels are outweighed by the interest in
protecting the public, vessels, and vessel crews
[[Page 61366]]
from the potentially devastating consequences of the hazard presented
by the dredging and filling operations.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this 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.
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. This rule will affect mainly recreational boaters who may
wish to transit the new breach between the Pamlico Sound and the
Atlantic Ocean. The body of water filling the breach did not exist
prior to the passage of Hurricane Isabel, and the U. S. Army Corps of
Engineers intends to close the inlet. No small entities have become
accustomed to using this new body of water; therefore this rule will
not have a significant impact. Any hardships experienced by persons or
vessels are outweighed by the interest in protecting the public,
vessels, and vessel crews from the potentially devastating consequences
of the hazard presented by the dredging and filling operations.
Assistance for Small Entities
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 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 create an
environmental risk to health or risk to safety that may
disproportionately affect children.
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.
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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g), of the Instruction, from further
environmental documentation. A final ``Environmental Analysis Check
List'' and a final ``Categorical Exclusion Determination'' will be
available in the docket where indicated under ADDRESSES.
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. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1
0
2. Add temporary Sec. 165.T05-150 to read as follows:
Sec. 165.T05-150 Safety Zone: Hatteras Island, NC.
(a) Location. The following area is a safety zone: waters of the
Pamlico Sound and the Atlantic Ocean within a rectangle shaped area
defined by the coordinates 35[deg]13.3' N, 75[deg]39.2' W; 35[deg]13.3'
N, 75[deg]40.3' W; 35[deg]12.8' N, 75[deg]40.3' W; and 35[deg]12.8' W,
75[deg]39.2' W.
(b) Regulations. (1) The general regulations contained in 33 CFR
165.23 apply to all persons and vessels in the safety zone, or
approaching the safety zone.
(2) All persons and vessels in the safety zone, or approaching the
safety zone, must comply with the instructions of the Coast Guard
Captain of the Port or designated on-scene-patrol personnel. These
personnel include commissioned,
[[Page 61367]]
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel by siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
(c) Waivers. The COTP may waive any of the requirements of this
section for any person, vessel or class of vessel upon finding that
circumstances are such that application of the safety zone is
unnecessary for port safety.
(d) Effective period. This section is effective from 12 noon on
October 17, 2003, to 5 p.m. on November 1, 2003.
Dated: October 17, 2003.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, NC.
[FR Doc. 03-27128 Filed 10-27-03; 8:45 am]
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