[Federal Register Volume 69, Number 97 (Wednesday, May 19, 2004)]
[Rules and Regulations]
[Pages 28825-28827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11234]


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

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.

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

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]
BILLING CODE 4910-15-P