[Federal Register Volume 69, Number 123 (Monday, June 28, 2004)]
[Rules and Regulations]
[Pages 36014-36016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14561]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-105]
RIN 1625-AA00


Safety Zone; Atlantic Intracoastal Waterway, Bogue Sound, 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 Intracoastal Waterway (AIWW) in the vicinity of Marine Corps 
Base Camp Lejeune, NC. Naval gunfire will be conducted crossing the 
AIWW from offshore in the vicinity of the N-1/BT3 impact area and 
impacting areas in Camp Lejeune. This safety zone is needed to ensure 
the safety of persons and vessels operating on the AIWW in this area 
during the specified periods. Entry into this safety zone is prohibited 
unless authorized by the Captain of the Port or his/her designated 
representative.

DATES: This rule is effective from 8 a.m. on June 07, 2004, until 8 
a.m. on July 16, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-04-105 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 3 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LCDR Charles A. Roskam II, Chief, Port 
Operations, USCG Marine Safety Office Wilmington, telephone number 
(910) 772-2200 or toll free (877) 229-0770.

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. Accordingly, based on the military function exception 
set forth in the Administrative Procedure Act, 5 U.S.C. 553(a)(1), 
notice and comment rule-making and advance publication are not required 
for this regulation.
    Additionally, publishing an NPRM and delaying the effective date of 
this rule would be contrary to the public interest since immediate 
action is necessary to minimize potential danger to the public and 
required to ensure the safety of persons and vessels operating on the 
AIWW in the specified area at the specified times when the naval 
gunfire will be conducted crossing the AIWW.

Background and Purpose

    Naval gunfire operations will be conducted crossing the AIWW from 
offshore on the Atlantic Ocean in the vicinity of the N-1/BT3 impact 
area and impacting areas in Camp Lejeune from 8 a.m. on June 04, 2004, 
until 8 a.m. on July 16, 2004. This safety zone will be in effect to 
ensure the safety of persons and vessels operating on the AIWW in this 
area.

Discussion of Rule

    The safety zone will cover all waters of the AIWW, from bank to 
bank, extending from Bogue Sound-New River Daybeacon 58 (LLNR 39210) 
southeast to Bogue Sound-New River Light 64 (LLNR 39230) during periods 
of naval gunfire operations. Projectiles from the gunfire operations 
will travel across the AIWW to the impact area on Camp Lejeune. This 
safety zone will be in effect to ensure the safety of persons and 
vessels operating on the AIWW in this area. Entry into this safety zone 
is prohibited unless authorized by the Captain of the Port or his/her 
designated representative. A Coast Guard or U.S. Navy vessel will 
patrol each end of the safety zone to ensure that the public is aware 
that the firing exercises are in progress and that the firing area is 
clear of traffic before firing commences.

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). This rule only affects a small portion, less than two 
miles, of the AIWW in North Carolina for a limited time. The proposed 
regulations have been tailored in scope to impose the least impact on 
maritime interests, yet provide the level of safety necessary for such 
an event.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a

[[Page 36015]]

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 
would 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 AIWW from 8 a.m. on June 04, 2004 until 8 
a.m. on July 16, 2004. The Coast Guard expects a minimal economic 
impact on a substantial number of small entities due to this rule 
because little commercial traffic transits this area of the AIWW.

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 Charles A. Roskam II, Chief Port Operations, USCG Marine Safety 
Office Wilmington at (910) 772-2200 or toll free (877) 229-0770.
    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 would not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would 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 would 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 would 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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

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

[[Page 36016]]


0
2. Add temporary Sec.  165.T05-105 to read as follows:


Sec.  165.T05-105  Safety zone; Atlantic Intracoastal Waterway, Bogue 
Sound, NC.

    (a) Location. The following area is a safety zone: All waters of 
the Atlantic Intracoastal Waterway, extending from Bogue Sound-New 
River Daybeacon 58 (LLNR 39210) southeast to Bogue Sound-New River 
Light 64 (LLNR 39230), Nautical Chart 11541, Intracoastal Waterway-NC-
Neuse River to Myrtle Grove Sound.
    (b) Captain of the Port. 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/her behalf.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this safety zone is prohibited 
unless authorized by the Captain of the Port. All vessel movement 
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 regulation.
    (2) Red warning flags or red warning lights will be displayed on 
towers located at both ends of the safety zone while firing exercises 
are in progress. The flags or lights will be displayed by 8 a.m. each 
day that this regulation is in effect, and will be removed at the end 
of firing exercises.
    (3) A Coast Guard or Navy vessel will patrol each end of the safety 
zone to ensure the public is aware that firing exercises are in 
progress and that the firing area is clear of vessel traffic before 
weapons are fired.
    (4) Vessels requiring entry into or passage through any portion of 
the safety zone must first request authorization from the Captain of 
the Port or the Coast Guard or U.S. Navy vessel on-scene. The Captain 
of the Port can be contacted at telephone number (800) 325-4965. The 
Coast Guard or U.S. Navy vessel may be contacted by radio on VHF Marine 
Band Radio, channels 13 (156.65 MHz) and 16 (156.8 MHz)
    (d) Effective period: This regulation will be enforced from 8 a.m. 
on June 07, 2004, until 8 a.m. on July 16, 2004.
    (e) 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).

    Dated: June 7, 2004.
Jane M. Hartley,
Captain, U.S. Coast Guard, Captain of the Port, Wilmington, NC.
[FR Doc. 04-14561 Filed 6-25-04; 8:45 am]
BILLING CODE 4910-15-P