[Federal Register Volume 68, Number 240 (Monday, December 15, 2003)]
[Rules and Regulations]
[Pages 69609-69611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30906]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-199]
RIN 1625-AA00


Safety Zone; Lockwood Folly Inlet, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
Atlantic Intra-Coastal Waterway (AICW) in the vicinity of Lockwood 
Folly Inlet, NC. This action is necessary to ensure public safety. This 
rule prohibits vessels with a draft greater than 3 feet from entering 
the safety zone unless specifically exempt under the provisions in this 
rule or granted specific permission from the Coast Guard Captain of the 
Port Wilmington.

DATES: This rule is effective from 3:30 p.m. on December 3, 2003 
through 3:30 p.m. May 8, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-03-199 and are available for 
inspection or copying at Coast Guard Marine Safety Office Wilmington, 
721 Medical Center Drive, Wilmington, NC 28401 between 8 a.m. and 4 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LCDR Chuck Roskam, Chief, Port 
Operations, USCG Marine Safety Office Wilmington, telephone number 
(910) 772-2207.

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) and 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for not publishing an NPRM and for 
making this rule effective less than 30 days after publication in the 
Federal Register. Publishing an NPRM and delaying the effective date of 
this rule would be contrary to the public interest. Immediate action is 
necessary to minimize potential danger to the public and is required to 
ensure the safety of persons and vessels operating on the AICW in this 
area during the period specified.
    The shoaling in the AICW at Lockwood Folly Inlet poses a unique and 
serious risk to any vessel transiting this area with a draft greater 
than 3 feet. Any grounding of a vessel poses a significant risk of 
injury to people onboard these vessels. There have been and continue to 
be groundings in this location and prompt action is required to prevent 
these incidents from continuing.

Background and Purpose

    An area of severe shoaling has been identified in the Atlantic 
Intracoastal Waterway in the vicinity of Lockwood Folly Inlet and a 
survey of this area indicates a water depth of 3.5 feet at mean low 
water. The Captain of the Port is restricting entry of vessels with a 
draft of greater than 3 feet from transiting this safety zone until 
dredging has been completed.

Discussion of Rule

    The safety zone will cover the AICW extending from Cape Fear River-
Little River Buoy 47 (LLNR 40225) to Cape Fear River-Little River Buoy 
48 (LLNR 40235). This safety zone will be in effect to ensure the 
safety of persons and vessels operating on the AICW in this area. Entry 
into this safety zone by vessels with a draft greater than 3 feet is 
prohibited at or near low tide unless authorized by the Captain of the 
Port or his or her designated representative.

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). The operational restrictions of the safety zone are 
tailored to provide the maximum safety of mariners and vessels. 
Further, this Safety Zone is temporary in nature and vessels and 
persons can appeal to the Captain of the Port for a waiver of the 
requirements of the Safety Zone. Any hardships experienced by persons 
or vessels are outweighed by the interest in protecting the public, 
vessels, and vessel crews.

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

[[Page 69610]]

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 the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in a portion of the AICW from 3:30 p.m. on December 
03, 2003 through 3:30 p.m. May 8, 2004. The Coast Guard expects minimal 
economic impact on a substantial number of small entities due to this 
rule because little commercial traffic transits this area of the AICW 
and vessels with compelling interests that outweigh the port's safety 
needs may be granted waivers from the requirements of the Safety Zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. Small 
Entities requesting guidance or exemption from this rule may contact 
LCDR Chuck Roskam, Chief, Port Operations, USCG Marine Safety Office 
Wilmington at (910) 772-2207.
    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 affect 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'' are available in the 
docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, Waterways.

0
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.T05-199 to read as follows:


Sec.  165.T05-199  Safety Zone: Atlantic Intra-Coastal Waterway, 
Lockwood Folly Inlet, NC.

    (a) Location. The following area is a safety zone: the Atlantic 
Intra-Coastal Waterway from Cape Fear River-Little River Buoy 47 (LLNR 
40225) west to Cape Fear River-Little River Buoy 48 (LLNR 40235). These 
points are found on Nautical Chart 11534-Intracoastal Waterway, Myrtle 
Grove Sound and Cape Fear River to Casino Creek.
    (b) Definition. As used in this section--
    Captain of the Port means the Commanding Officer of the Marine 
Safety Office Wilmington, North Carolina, or any Coast Guard 
Commissioned, Warrant, or Petty Officer who has been authorized by the 
Captain of the Port to act on his or her behalf.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry of vessels with a draft

[[Page 69611]]

greater than 3 feet into the safety zone in paragraph (a) of this 
section is prohibited unless authorized by the Captain of the Port. 
Movement of vessels with a draft greater than 3 feet within the safety 
zone will be prohibited except as specifically authorized by the 
Captain of the Port. The general requirements of Sec.  165.23 also 
apply to this section.
    (2) The Captain of the Port 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. The Captain of the Port can be contacted 
at telephone number (800) 325-4965.
    (3) The Captain of the Port will notify the public of changes in 
the status of this safety zone by Marine Safety Radio Broadcast on VHF 
Marine Band Radio, Channel 22 (157.1 MHz).
    (d) Effective period. The safety zone in paragraph (a) of this 
section will be effective from 3:30 p.m., December 3, 2003 through May 
8, 2004.

    Dated: December 03, 2003.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, NC.
[FR Doc. 03-30906 Filed 12-12-03; 8:45 am]
BILLING CODE 4910-15-P