[Federal Register Volume 68, Number 208 (Tuesday, October 28, 2003)]
[Rules and Regulations]
[Pages 61365-61367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27128]


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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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