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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [COTP Jacksonville 04-112] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule. 

# SUMMARY:

The Coast Guard is establishing a temporary safety zone in the Atlantic Ocean in the Port Canaveral Entrance Channel. The safety zone is established for the safety of marine vessels transiting a shoaled area within the navigation channel as a result of Hurricane Frances. 

# DATES:

This rule is effective from 10 a.m. on September 10, 2004, through 10 a.m. on December 10, 2004. 

# ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket COTP Jacksonville 04-112 and are available for inspection or copying at Coast Guard Marine Safety Office Jacksonville, 7820 Arlington Expressway, Suite 400, Jacksonville, Florida, 32211, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

Lieutenant James R. Bigbie at Coast Guard Marine Safety Office, Jacksonville, FL, tel: (904) 232-2640, ext. 105. 

# 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. Publishing an NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date are contrary to public safety because immediate action is necessary to protect the public and waters of the United States. 

                    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**                    . Immediate action is necessary to protect the public and waters of the United States. The Coast Guard will issue a broadcast notice to mariners and may place Coast Guard vessels in the vicinity of this zone to advise mariners of the restriction.                 

## Background and Purpose 

This rule is needed to protect marine craft transiting the Port Canaveral Entrance Channel. The safety zone includes all those waters shoreward of a boundary that originates on the beach in position 28°21′24″ N 080°36′12″ W; and extends east to 28°21′24″ N 080°30′18″ W; then north to 28°24′48″ N 080°30′18″ W; then west to the beach where the zone will terminate at position 28°24′48″ N 080°35′00″ W. Anchoring, mooring, or transiting within this zone is prohibited, unless authorized by the Captain of the Port, Jacksonville, FL.

## Regulatory Evaluation 

This regulation 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 cost 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) because these regulations will only be in effect for a short period of time, and the impacts on routine navigation are expected to be minimal. 

## 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 upon a substantial number of small entities because although the safety zone will apply to all vessels transiting the port with a draft greater than 22 feet, traffic will be allowed to pass through the zone with the permission of the Coast Guard Captain of the Port and the impact on routine navigation is expected to be minimal. 

## Assistance for Small Entities 

                    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under                     **FOR FURTHER INFORMATION CONTACT**                     for assistance in understanding this rule.                 

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.                           ( print page 58834)    

## 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 my result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule will not result in such an 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 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 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 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. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. 

# 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 165 as follows: 

# PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for Part 165 continues to read as follows: 

Authority:33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.

2. A new temporary § 165.T07-112 is added to read as follows: 

§ 165.T07-112 

                            (a)                             *Location.*                             The Coast Guard is establishing a temporary safety zone in the Atlantic Ocean—Port Canaveral Channel. The safety zone includes all those waters shoreward of a boundary that originates on the beach in position 28° 21′ 24″ N 080° 36′ 12″ W; and extends east to 28° 21′ 24″ N 080° 30′ 18″ W; then north to 28° 24′ 48″ N 080° 30′ 18″ W; then west to the beach where the zone will terminate at position 28° 24′ 48″ N 080° 35′ 00″ W. Anchoring, mooring, or transiting within this zone is prohibited, unless authorized by the Captain of the Port, Jacksonville, FL.                         

                            (b)                             *Regulations.*                             The general regulations governing safety zones as contained in 33 CFR 165.23 apply. Vessels with a draft of 22 feet or less may transit within this safety zone. Vessels with a draft greater than 22 feet may not operate within this safety zone without prior approval from the Captain of the Port, Jacksonville, FL. The Captain of The Port may be contacted on a 24 hour basis by calling Lieutenant Patrick Eiland at (321) 784-6781.                         

                            (c)                             *Dates.*                             This rule is effective from 10 a.m. on September 10, 2004, through 10 a.m. on December 10, 2004.                         

Dated: September 10, 2004. 

David. L. Lersch, 

Captain, U.S. Coast Guard, Captain of the Port Jacksonville. 

[FR Doc. 04-22141 Filed 9-30-04; 8:45 am] 

BILLING CODE 4910-15-P