[Federal Register: May 19, 2004 (Volume 69, Number 97)]
[Rules and Regulations]
[Page 28825-28827]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my04-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-98-043]
RIN 1615-AA00 (Formerly 2115-AA97)
Safety Zone: Atlantic Ocean, Vicinity of Cape Henlopen State
Park, DE
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: In 1999, the Coast Guard established a safety zone in the
Atlantic Ocean near Cape Henlopen State Park, Delaware. The zone was
created to protect spectators and vessels from the potential hazards
associated with the Delaware Aerospace Education Foundation launch of a
Super Loki Meteorological Rocket from Cape Henlopen State Park on the
second Saturday of May each year. Vessels may not enter the safety zone
without permission of the Captain of the Port, Philadelphia. Because of
a clerical error, this final rule was only referenced in the Federal
Register in 1999 and not published in full text.
DATES: This final rule became effective on May 7, 1999. The rule has
been enforced using actual notice since May 7, 1999, and is enforceable
using constructive notice as of May 19, 2004.
ADDRESSES: Documents as indicated in this preamble are available for
inspection or copying at the office of the Commanding Officer, USCG
MSO/Group Office, 1 Washington Avenue, Philadelphia, PA 19147-4395,
between 8 a.m. and 5 p.m., Monday through Friday, except federal
holidays. The telephone number is (215) 271-4888.
FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Kevin Sligh or
Ensign Jill Munsch, Waterways Management Branch, USCG MSO/Group Office,
1 Washington Avenue, Philadelphia, PA 19147-4395, telephone (215) 271-
4889.
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 8, 1999, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``Safety Zone; Atlantic Ocean, Vicinity of
Cape Henlopen State Park, DE'' in the Federal Register (64 FR 6006).
The Coast Guard did not receive any comments on this proposed
rulemaking. No public hearing was requested, and none was held.
Finding good cause under 5 U.S.C. 553(d)(3), the Coast Guard issued
a final rule April 30, 1999, and made it effective less than 30 days
after publication in the Federal Register. We noted that the next
launch of the Super Loki Meteorological Rocket from Cape Henlopen State
Park was scheduled for May 8, 1999, and that rather than publish a
temporary final rule for 1999 and a final rule for all years
thereafter, we made the final rule effective on May 7, 1999 because it
was the most efficient solution. Delaying the effective date would have
been contrary to the public interest as immediate action is necessary
to restrict vessel traffic in the area, and protect mariners from the
potential hazards associated with the launch.
The final rule was received at Coast Guard Headquarters on May 7,
1999, but was mistakenly designated for inclusion in a quarterly list
of temporary final rules that expired before they could be published in
full text in the Federal Register. Therefore, this final rule was
referenced in a notice of temporary rules entitled ``Safety Zones,
Security Zones, and Special Local Regulations.'' (64 FR 72929, December
29, 1999). The final rule's docket number entry, however, was listed as
``05-99-043'' instead of ``05-98-043'' (64 FR 72931). The final rule
was scanned as item 78 into our
[[Page 28826]]
docket, USCG-1999-5938, for notice of temporary rule published December
29, 1999 (to visit that docket on the Internet, go to http://dms.dot.gov/search/searchFormSimple.cfm
and type in ``5938''). This
final rule was signed on April 30, 1999, by Roger T. Rufe, Jr., then
Vice Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
Background and Purpose
The Delaware Aerospace Education Foundation will launch a Super
Loki Meteorological Rocket from Cape Henlopen State Park each year on
the second Saturday in May, for the purpose of collecting
meteorological data. If the Saturday launch is cancelled because of
inclement weather, it is rescheduled for the next day. This safety zone
is necessary to protect spectators and transiting vessels from the
potential hazards associated with the launch.
Although the exact launch time is subject to change because of
weather, the entire process from launch to splashdown should occur
between 2 p.m. and 4:30 p.m. on the launch date. The Coast Guard will
announce by broadcast Notice to Mariners the anticipated day (either
Saturday or Sunday) and the time of launch. The Coast Guard will grant
general permission to enter the safety zone during those times in which
the launch and spent rocket motor do not pose a hazard to mariners.
Because the hazardous condition should last for only 2\1/2\ hours of
one day, and because general permission to enter the safety zone will
be given during non-hazardous times, the impact of this rule on
commercial and recreational traffic should be minimal.
This safety zone covers an 8-square-nautical-mile section of the
Atlantic Ocean adjacent to the launch site at Cape Henlopen State Park
in Delaware. Specifically, the waters of the Atlantic Ocean within the
area bounded by a line drawn north from the tip of Cape Henlopen,
located at latitude 38[deg]48.2' N, longitude 75[deg]05.5' W, to a
point located at latitude 38[deg]49.4' N, longitude 75[deg]05.5' W;
then east to a point located at latitude 38[deg]49.4' N, longitude
75[deg]01.4' W; then south to a point located at latitude 38[deg]43.0'
N, longitude 75[deg]01.4' W; then west to a point on the shoreline
located at latitude 38[deg]43.0' N, longitude 75[deg]04.5' W, then
north following the shoreline, to a point located at latitude
38[deg]48.2' N, longitude 75[deg]05.5' W.
The safety zone will be enforced on the second Saturday in May or
the following day. Vessels will be prohibited from transiting through
the safety zone without first obtaining permission from the Captain of
the Port, Philadelphia. The Captain of the Port will announce by
Broadcast Notice to Mariners the anticipated day and time of the launch
and grant general permission to enter the safety zone during all non-
hazardous times.
The rocket payload, assisted by parachute, should splash down in
the Atlantic Ocean about 22 nautical miles southeast of the launch
point, which is an area outside of the proposed safety zone. The Coast
Guard advises all marine traffic to exercise caution when transiting
that area during launch times.
Discussion of Comments and Changes
The Coast Guard received no comments on the 1999 proposed rule (64
FR 6006, February 8, 1999). The May 1999 final rule expanded the
description of the safety zone to include the final leg along the
shoreline adjacent to Cape Henlopen State Park. Otherwise, the May 1999
final rule implemented the NPRM without change.
Regulatory Evaluation
This final 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. It has been exempted from review by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Homeland
Security (DHS). The area of the safety zone is limited to 8 square
nautical miles. The hazardous condition should last for only 2\1/2\
hours of one day. General permission to enter the safety zone will be
given during non-hazardous times. Therefore, Coast Guard expects the
economic impact of this rule to be so minimal that a full Regulatory
Evaluation under the regulatory policies and procedures of DHS is
unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considered whether this final rule would have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include 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 area of the safety zone is limited to 8-square nautical
miles. The hazardous conditions should last for only 2\1/2\ hours of
one day. General permission to enter the safety zone will be given
during non-hazardous times. Therefore, the Coast Guard certifies under
section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
that this rule will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This final rule contains no Collection-of-Information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this final rule under the principles
and criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this final
rule and concluded that, under figure 2-1, paragraph (34)(g) of
COMDTINST M16475.1 C, this rule is categorically excluded from further
environmental documentation. Regulations establishing safety zones are
excluded under that authority. Nevertheless, a Categorical Exclusion
Determination statement was prepared and placed in the rulemaking
docket. It is available for inspection or copying at the location
indicated under ADDRESSES.
In the course of developing the Categorical Exclusion
Determination, the U.S. Fish and Wildlife Service provided comments to
the Coast Guard in accordance with Section 7 of the Endangered Species
Act (87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.). One Federally
listed threatened species, the piping plover (Charadrius melodus),
nests at Cape Henlopen State Park. In Delaware, their breeding season
is March 15 through September 1; thus, the rocket launch is in the
midst of their breeding season.
The comments recommended that the rocket not launch within \1/4\
mile of the plover's breeding grounds. We forwarded the comments to the
Delaware Aerospace Education Foundation and the Delaware Division of
Parks and Recreation. The latter organization authorizes the rocket
launch by issuance of a special-use permit. Our final rule does not
determine the site of the rocket; it merely establishes a safety zone
to protect spectators and transiting vessels from the hazards
associated with the launch. If the launch site is repositioned as a
result of this environmental concern, the Coast Guard will revise the
location of the safety zone accordingly and publish the new location in
the Federal Register.
[[Page 28827]]
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons set out in the preamble, the Coast Guard amends 33 CFR
part 165 as follows:
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 Sec. 165.535 to read as follows:
Sec. 165.535 Safety Zone: Atlantic Ocean, Vicinity of Cape Henlopen
State Park, Delaware.
(a) Location. The following area is a safety zone: All waters of
the Atlantic Ocean within the area bounded by a line drawn north from
the tip of Cape Henlopen located at latitude 38[deg]48.2' N, longitude
75[deg]05.5' W, to a point located at latitude 38[deg]49.4' N,
longitude 75[deg]05.5' W; thence east to a point located at latitude
38[deg]49.4' N, longitude 75[deg]01.4' W; thence south to a point
located at latitude 38[deg]43.0' N, longitude 75[deg]01.4' W; thence
west to a point on the shoreline located at latitude 38[deg]43.0' N,
longitude 75[deg]04.5' W; thence north following the shoreline, to a
point located at latitude 38[deg]48.2' N, longitude 75[deg]05.5' W. All
coordinate refer to Datum: NAD 1983.
(b) Regulation. The general regulations governing safety zones
contained in Sec. 165.23 apply. Vessels may not enter the safety zone
without first obtaining permission from the Captain of the Port (COTP)
Philadelphia.
(c) Dates. This section is enforced annually on the second Saturday
in May and the following day.
(d) General information. (1) Those times during which hazardous
conditions exist inside the safety zone will be announced by Broadcast
Notice to Mariners. General permission to enter the safety zone will be
broadcast during non-hazardous times. (2) You can gain access to the
safety by calling Group Atlantic City command center at telephone
number (609) 677-2222 and on VHF channel 13 or 16.
(3) The COTP Philadelphia may authorize and designate any Coast
Guard commissioned, warrant, or petty officer to act on his behalf in
enforcing this safety zone.
Dated: May 6, 2004.
Ben R. Thomason, III,
Captain, U.S. Coast Guard, Commander, Fifth Coast Guard, Acting.
[FR Doc. 04-11234 Filed 5-18-04; 8:45 am]
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