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###### Department of Transportation

###### Coast Guard 

          - 33 CFR Part 165 
          - [CGD05-00-047] 
          - RIN 2115-AA97 

# AGENCY:

Coast Guard, DOT. 

# ACTION:

Temporary final rule. 

# SUMMARY:

The Coast Guard is establishing temporary regulations in the Cape May Harbor, Cape May, NJ during a New Jersey Department of Environmental Protection oil spill booming test in the north end of the Cape May Harbor. This action is necessary to provide for the safety of life and property on navigable waters during the booming test. This action will restrict vessel traffic as the north end of the Cape May Harbor will be closed to all vessel traffic. 

# DATES:

This rule is effective from 7 a.m. to 1 p.m. on October 19, 2000. 

# ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD05-00-047 and are available for inspection or copying at Coast Guard Marine Safety Office/Group Philadelphia, One Washington Avenue, Philadelphia, Pennsylvania 19147 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

Lieutenant Junior Grade Wade Kirschner, Coast Guard Marine Safety Office/Group Philadelphia, (215) 271-4889. 

# 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. We were notified of the oil pollution booming test in the Cape May Harbor with insufficient time to publish an NPRM, allow for comments, and publish a final rule. 

                    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**                    . We were informed on September 7, 2000 that a strategic booming test would take place in the Cape May Harbor. Delaying the effective date of the rule would be contrary to the                           ( print page 62291)                        public interest, since immediate action is needed to protect mariners against potential hazards associated with the temporary placement of boom across the north end of the Cape May Harbor.                 

## Background and Purpose 

The strategic booming exercise is in response to a 1996 oil spill that fouled the New Jersey shoreline from Manasquan to Cape May. The New Jersey Department of Environmental Protection commissioned a project to develop potential protection strategies for each tidal inlet occurring along the Atlantic Coast of New Jersey. 

The thirteen tidal inlets along New Jersey's coastline are actually channels that divide the barrier islands into segments. The inlets are subject to reversing tidal currents, and are conduits for the volume of water that flows in and out of the bay/estuarine system during a tidal cycle called the tidal prism. It is through these conduits that oil spilled on open ocean waters could reach the sensitive resources, such as salt marshes, that occur along the bay/estuarine shorelines. Coastal tidal inlets are therefore focal points for designing strategies to protect these vital resources from spilled oil. 

## Regulatory Evaluation 

This 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. 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 Transportation (DOT) (44 FR 11040; February 26, 1979). 

We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. 

The primary impact of these regulations will be on vessels wishing to transit the affected waterways during the booming exercise on October 19, 2000. Although this regulation prevents traffic from transiting portions of the Cape May Harbor during the event, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area. In addition, there is an alternate route out of the harbor through the Cape May Canal. 

## Small Entities 

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small business, 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 the following entities, some of which may be small entities: the owners or operators of fishing or recreational vessels intending to transit the north end of the Cape May Harbor. 

The rule will not have a significant impact on a substantial number of small entities for the following reasons: the restrictions are limited in duration, affect only limited areas, and although the safety zone will apply to the entire width of the navigable channel, traffic will be able to exit the north end of the Cape May Harbor via the Cape May Canal. The oil spill prevention exercise has been well publicized by the New Jersey Department of Environmental Protection, which distributed flyers to the marinas and boaters located in the north end of the Cape May Harbor. In addition, before the effective period, the Coast Guard will issue maritime advisories to allow mariners to make alternative plans for transiting the affected areas. 

## Assistance for Small Entities 

Under section 213 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we are willing to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. 

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 Ombudsmen and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small businesses. 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 

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order. 

## Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule will not impose an unfunded mandate. 

## 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 concern an environmental risk to health or risk to safety that may disproportionately affect children. 

## Environment 

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. 

# List of Subjects in 33 CFR Part 165

      - Harbors
      - Marine safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Security measures
      - Waterways

## Regulation 

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows: 

# PART 165—[AMENDED] 

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;                                   ( print page 62292)    49 CFR 1.46. Section 165.100 is also issued under authority of Sec. 311, Pub. L. 105-383.                         

2. Add temporary § 165.T05-047 to read as follows: 

§ 165.T05-047

                            (a) Definitions. (1)                             *Captain of the Port*                             means the Commanding Officer of the Coast Guard Marine Safety Office/Group Philadelphia or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port to act on his behalf.                         

                            (2)                             *Coast Guard Representative*                             is a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commanding Officer, Coast Guard Marine Safety Office/Group Philadelphia.                         

                            (b)                             *Location.*                             This rule establishes a safety zone to include all waters 100 feet in any direction from all booming equipment and any vessels participating in the strategic booming exercise. One end of the boom will start from the Coast Guard Buoy Yard (approximate position 38° 56′ 90″ N, 074° 53′ 30″ W) on the south side of the entrance to the North end of the Cape May Harbor and will extend out near the green can buoy number “3”. From the green can marker buoy “3”, the boom will extend across the navigable channel and be attached to the red flashing (2+1) day marker “C”. From the day marker, the boom will extend to the north side of the north entrance to the Cape May Harbor and end near Snow's Fish Processing Plant (approximate position 38° 57′ 20″ N, 74° 53′ 00″ W). All coordinates reference Datum NAD 1983.                         

                            (c)                             *Regulations.*                             (1) All persons are required to comply with the general regulations governing safety zones in § 165.23 of this part.                         

(2) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard Representative. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard Representative and leave the safety zone immediately if the Coast Guard Representative so orders. 

(3) The Coast Guard vessels enforcing this section can be contacted on VHF Marine Band Radio, channels 13 and 16. The Captain of the Port can be contacted at telephone number (215) 271-4940. 

(4) The Coast Guard Representative will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHz). 

                            (d)                             *Effective dates.*                             These regulations are effective from 7 a.m. to 1 p.m. on October 19, 2000.                         

Dated: September 20, 2000. 

G.F. Adams, 

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

[FR Doc. 00-26772 Filed 10-17-00; 8:45 am] 

BILLING CODE 4910-15-P