[Federal Register Volume 87, Number 35 (Tuesday, February 22, 2022)]
[Rules and Regulations]
[Pages 9450-9452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03671]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0094]
RIN 1625-AA00


Safety Zone; Atlantic Ocean, Cape Lookout, NC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Atlantic Ocean near Cape Lookout, North 
Carolina. This temporary safety zone restricts vessel traffic in a 
portion of the Atlantic Ocean while crews continue to search a plane 
crash area. This action restricts vessel traffic to protect mariners, 
vessels, and dive crews from the hazards associated with the work or 
surveying a plane crash site. Entry of vessels or persons into this 
safety zone is prohibited unless specifically authorized by the Captain 
of the Port (COTP) North Carolina or a designated representative.

DATES: This rule is effective without actual notice from February 22, 
2022, until March 1, 2022. For the purposes of enforcement, actual 
notice will be used from February 15, 2022, until February 22, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0094 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Ken Farah, Waterways Management Division, 
U.S. Coast Guard; telephone 910-772-2221, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because it would be impracticable and 
contrary to the public interest. The Coast Guard was unable to publish 
an NPRM and hold a reasonable comment period for this rulemaking due to 
the emergent nature of the recovery operations and required publication 
of this rule. Immediate action is needed to protect persons and vessels 
from the hazards associated with carrying out operations to recover the 
downed aircraft and survey the area for debris. It is impracticable and 
contrary to the public interest to publish an NPRM because a final rule 
needs to be in place by February 15, 2022.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register. Delaying the effective 
date of this rule would be impracticable and contrary to the public 
interest for the reasons discussed above, immediate action is needed to 
protect persons, property, vessels, and the marine environment on the 
navigable waters of the Atlantic Ocean near Cape Lookout in North 
Carolina.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port North Carolina (COTP) has determined 
potential hazards associated with operations during recovery work on 
the site of a plane crash. Work on this site is starting February 15, 
2022, and ongoing. This work is a safety concern for anyone transiting 
the designated recovery area of the Atlantic Ocean and Cape Lookout, 
NC, because the site work will involve persons in the water. This rule 
is necessary to protect persons, vessels, and participants from the 
hazards associated with the recovery efforts.

IV. Discussion of the Rule

    This rule establishes a safety zone from on February 15, 2022, 
through March 1, 2022. The safety zone will be enforced from 7 a.m. 
through 7 p.m. each day the rule is in effect. The safety zone will 
include all navigable waters of the Atlantic Ocean within a 1,000 yard 
radius of position 34-48.81 N by 076-17.23 W. The duration of this zone 
is intended to protect persons, property, vessels, and the marine 
environment on the navigable waters of the Atlantic Ocean during the 
recovery efforts of at downed aircraft. No vessel or person will be 
permitted to enter the safety zone unless specifically authorized by 
the Captain of the Port North Carolina or a designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the emergent 
nature of this event and limited impact to the public. The safety zone 
is in an area where there is ample space to pass around this area. 
Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone, and the rule will allow 
vessels to seek permission to pass through the zone if necessary.

[[Page 9451]]

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 on a substantial number of 
small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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.

E. 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321-4370f), and have determined that this action is one of 
a category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This rule involves a 
safety zone that will prohibit entry within 1,000 yards of vessels and 
machinery being used by personnel to survey and recover an aircraft 
crash site at position 34-48.81 N by 076-17.23 W. It is categorically 
excluded from further review under paragraph L[60d] of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of 
Environmental Consideration supporting this determination is available 
in the docket. For instructions on locating the docket, see the 
ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section to coordinate protest activities so 
that your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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 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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T05-0094


Sec.  165.T05-0094   Safety Zone; Atlantic Ocean, Cape Lookout, NC.

    (a) Location. The following area is a safety zone on all navigable 
waters within a 1,000 yard radius of position 34-48.81 N by 076-17.23 W 
on the Atlantic Ocean near Cape Lookout, North Carolina.
    (b) Definitions. As used in this section--
    Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard commissioned, warrant, or petty officer 
designated by the Captain of the Port North Carolina (COTP) for the 
enforcement of the safety zone.
    (c) Regulations. (1) The general regulations governing safety zones 
in Sec.  165.23 apply to the area described in paragraph (a) of this 
section.
    (2) Entry into or remaining in this safety zone is prohibited 
unless authorized by the COTP or the COTP's designated representative. 
Unless permission to remain in the zone has been granted by the COTP or 
the COTP's designated representative, a vessel within this safety zone 
must immediately depart the zone when this section becomes effective.
    (3) The Captain of the Port, North Carolina can be reached through 
the Coast Guard Sector North Carolina Command Duty Officer, Wilmington, 
North Carolina, at telephone number 910-343-3882.
    (4) The Coast Guard and designated security vessels enforcing the 
safety zone can be contacted on VHF-FM marine band radio channel 13 
(165.65 MHz) and channel 16 (156.8 MHz).

[[Page 9452]]

    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement period. This section will be enforced from 7 a.m. 
through 7 p.m. each day from February 15, 2022, through March 1, 2022.

    Dated: February 15, 2022.
Matthew J. Baer,
Captain, U.S. Coast Guard, Captain of the Port North Carolina.
[FR Doc. 2022-03671 Filed 2-18-22; 8:45 am]
BILLING CODE 9110-04-P


