2010-10948. Safety Zones; Marine Events Within the Captain of the Port Sector Northern New England Area of Responsibility

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing eight safety zones for marine events within the Captain of the Port Sector Northern New England area of responsibility for regattas, power boat races, parades, and fireworks displays. This action is necessary to provide for the safety of life on navigable waters during the events. Entry into, transit through, mooring or anchoring within these zones is prohibited unless authorized by the Captain of the Port Sector Northern New England.

DATES:

This rule is effective in the CFR on May 10, 2010 through 11:59 p.m. on September 29, 2010. This rule is effective with actual notice for purposes of enforcement beginning at 10 a.m. on May 1, 2010.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0239 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0239 in the “Keyword” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail Lieutenant Junior Grade Laura van der Pol, Waterways Management Division at Coast Guard Sector Northern New England, telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

The Coast Guard is issuing this temporary final 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 publishing a NPRM is impractical as the Coast Guard did not receive notification of the specific location or planned dates for the events in sufficient time to issue a NPRM without delaying this rulemaking. Further, it is contrary to public interest to delay the effective date of this rule. Delaying the effective date by first publishing a NPRM and holding a comment period would be contrary to the rule's objectives of ensuring safety of life on the navigable waters during these scheduled events as immediate action is needed to protect persons and vessels from the hazards associated with vessels participating in regattas, races and parades as well as the hazardous nature of fireworks including unexpected detonation and burning debris.

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. In addition to the reasons stated above, this rule is intended to ensure the safety of the event participants, spectators and other waterway users thus any delay in the rule's effective date would be impractical.

Basis and Purpose

Marine events are frequently held on the navigable waters within the area of responsibility for Captain of the Port Sector Northern New England. These events include sailing regattas, parades, power boat races, fireworks displays, and other vessel races. Based on the nature of the events, large number of participants and spectators, and the event locations, the Coast Guard has determined that the events listed in this rule could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of participant injury or death resulting from near or actual contact with non-participant vessels traversing through the safety zones. In order to protect the safety of all waterway users including event participants and spectators, this temporary rule establishes safety zones for the time and location of each event.

This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as safety zones during the periods of enforcement unless authorized by the Captain of the Port or designated on-scene patrol personnel. On-scene patrol personnel may be comprised of local, state or federal officials authorized to act in support of the Coast Guard.

The Coast Guard has ordered safety zones or special local regulations for all of these eight areas for past events and has not received public comments or concerns regarding the impact to waterway traffic from these annual events.

Discussion of Rule

This temporary rule creates safety zones for all navigable waters within the described area of each event as follows: A safety zone 50 yards in radius from all participants in the Downeast Adventure Race on the St. Croix River in Calais, Maine to be enforced from 10 a.m. to 2 p.m. on May 1, 2010; a safety zone of 350 yard radius from the Hampton Beach Fireworks launch site in the vicinity of Hampton Beach, New Hampshire to be enforced from 8 p.m. to 10:30 p.m. every Saturday, Sunday, and Wednesday from May 5, 2010, through September 29, 2010; a safety zone 50 yards in radius around all participants in the Tall Ships visit to Portsmouth Regatta and Parade in the vicinity of Portsmouth Harbor, New Hampshire, to be enforced from 10 a.m. through 7 p.m. on May 28, 2010 through May 31, 2010; a safety zone 50 yards in radius around all participants in the Bar Harbor Blessing of the Ships in the vicinity of Bar Harbor, Maine to be enforced from 12 p.m. through 1:30 p.m. on June 6, 2010; a safety zone 50 yards in radius around all participants in the Boothbay Harbor Lobster Boat Races in Boothbay Harbor, Maine to be enforced from 10 a.m. until 3 p.m. on June 19, 2010; a safety zone 50 yards in radius around all participants in the Rockland Harbor Lobster Boat Races in the vicinity of Rockland Harbor, Maine, to be enforced from 10 a.m. until 3 p.m. on June 20, 2010; a safety zone 50 yards in radius around all participants in the Windjammer Days Parade of Ships in the vicinity of Boothbay Harbor, Maine, to be enforced from 12 p.m. until 5 p.m. on June 22 and 23, 2010; a safety zone 350 yards in radius from the fireworks launch site in the vicinity of Boothbay Harbor, Maine, for the Windjammer Days Fireworks to be enforced from 8 p.m. until 10:30 p.m. on June 23, 2010. As large numbers of spectator vessels are expected to congregate around the location of these events, the safety zones are needed to protect both spectators and participants from the safety hazards created by the event. During the enforcement period of the safety zones, persons and vessels will be prohibited from entering, transiting, remaining within, anchoring or mooring within the zone unless specifically authorized by the Captain of the Port or his designated representatives. The Coast Guard may be assisted by other federal, state and local agencies in the enforcement of these safety zones.

The Coast Guard determined that these safety zones will not have a significant impact on vessel traffic due to the temporary nature and limited size of the safety zones and the fact that vessels are allowed to transit the navigable waters outside of the safety zones.

Advanced public notifications will also be made to the local maritime community by the Local Notice to Mariners as well as Broadcast Notice to Mariners.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

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.

The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: The safety zones will be of limited duration, they cover only a small portion of the navigable waterways, and the events are designed to avoid, to the extent possible, deep draft, fishing, and recreational boating traffic routes. In addition, vessels requiring entry into the area of the safety zones may be authorized to do so by the Captain of the Port.

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 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 the designated safety zones during the enforcement periods stated for each event in the List of Subjects.

The safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zones will be of limited size and of short duration, and vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as safety zones. Additionally, before the effective period, the Coast Guard will issue notice of the time and location of each safety zone through a Local Notice to Mariners and Broadcast Notice to Mariners.

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.

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.

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 (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.

Taking of Private Property

This rule will not cause 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 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 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.

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 temporary rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded 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 is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction as this rule involves establishing safety zones. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures, and 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

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

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T01-0239 to read as follows:

§ 165.T01-0239

Safety zones; Marine events within the Captain of the Port Sector Northern New England Area of Responsibility.

(a) Safety zones. (1) The following areas are designated safety zones:

(2) Locations. For all fireworks events listed in the events table in this paragraph (a)(2), all navigable waters within a 350 yard radius of the fireworks launch site. For all power boat races, regattas, boat parades, rowing races, and paddling boat races, all vessels not associated with the event must maintain a 50 yard radius around all vessels participating in the event.

Events Table

5.0	MAY
5.1 Downeast Adventure Race	Event Type: Rowing and paddling boat race. Sponsor: Washington County Community College.
	Date: May 1, 2010.
	Enforcement Time: 10 am to 2 pm.
	Location: The regulated area includes all U.S. waters in the Saint Croix River from the launch site in Calais, Maine at approximate position 45°11′24″ N, 067°16′48″ W (NAD 83), following the river bank to the end site at position 44°10′07″ N, 067°14′29″ W (NAD 83).
5.2 Hampton Beach Fireworks	Event Type: Fireworks display. Sponsor: Hampton Beach Village District.
	Dates: Every Wednesday, Saturday and Sunday from May 5, 2010 through September 29, 2010, as specified in the USCG District 1 Local Notice to Mariners at: http://www.navcen.uscg.gov/​LNM/​default.htm.
	Enforcement Time: 8 pm to 10:30 pm.
	Location: In the vicinity of the Hampton Beach, New Hampshire waterfront in approximate position 42°54′33″ N, 070°48′38″ W (NAD 83).
5.3 Tall Ships Visiting Portsmouth	Event Type: Regatta and boat parade. Sponsor: Portsmouth Maritime Commission, Inc.
	Date: May 28 through May 31, 2010 Enforcement Time: 10 am to 7 pm.
	Location: The regulated area includes all waters of Portsmouth Harbor, New Hampshire within the following points (NAD 83):
	43°03′11″ N  070°42′26″ W
	43°03′18″ N  070°41′51″ W
	43°04′42″ N  070°42′11″ W
	43°04′28″ N  070°44′12″ W
	43°05′36″ N  070°45′56″ W
	43°05′29″ N  070°46′09″ W
	43°04′19″ N  070°44′16″ W
	43°04′22″ N  070°42′33″ W
6.0	JUNE
6.1 Bar Harbor Blessing of the Fleet	Event Type: Regatta and boat parade. Sponsor: Town of Bar Harbor, Maine.
	Date: June 6, 2010.
	Enforcement Time: 12 pm to 1:30 pm.
	Location: The regulated area includes all waters of Bar Harbor, Maine within the following points (NAD 83):
	44°23′32″ N  068°12′19″ W
	44°23′30″ N  068°12′00″ W
	44°23′37″ N  068°12′00″ W
	44°23′35″ N  068°12′19″ W
6.2 Boothbay Harbor Lobster Boat Races	Event Type: Power boat race. Sponsor: Boothbay Harbor Lobster Boat Race Committee.
	Date: June 19, 2010.
	Enforcement Time: 10 am to 3 pm.
	Location: The regulated area includes all waters of Boothbay Harbor, Maine within the following points (NAD 83):
	43°50′04″ N  069°38′37″ W
	43°50′54″ N  069°38′06″ W
	43°50′49″ N  069°37′50″ W
	43°50′00″ N  069°38′20″ W
6.3 Rockland Harbor Lobster Boat Races	Event Type: Power boat race. Sponsor: Rockland Harbor Lobster Boat Race Committee.
	Date: June 20, 2010.
	Enforcement Time: 10 am to 3 pm.
	Location: The regulated area includes all waters of Rockland Harbor, Maine within the following points (NAD 83):
	44°05′59″ N  069°04′53″ W
	44°06′43″ N  069°05′25″ W
	44°06′50″ N  069°05′05″ W
	44°06′05″ N  069°04′34″ W
6.4 Windjammer Days Parade of Ships	Event Type: Regatta and boat parade. Sponsor: Boothbay Region Chamber of Commerce.
	Date: June 22 & 23, 2010.
	Enforcement Time: 12 pm to 5 pm.
	Location: The regulated area includes all waters of Boothbay Harbor, Maine within the following points (NAD 83):
	43°51′02″ N  069°37′33″ W
	43°50′47″ N  069°37′31″ W
	43°50′23″ N  069°37′57″ W
	43°50′01″ N  069°37′45″ W
	43°50′01″ N  069°38′31″ W
	43°50′25″ N  069°38′25″ W
	43°50′49″ N  069°37′45″ W
6.5 Windjammer Days Fireworks	Event Type: Fireworks display. Sponsor: Boothbay Harbor Region Chamber of Commerce.
	Date: June 23, 2010.
	Enforcement Time: 8 pm to 10:30 pm.
	Location: In the vicinity of McFarland Island, Boothbay Harbor, Maine in approximate position 43°50′38″ N, 069°37′57″ W (NAD 83).

(b) Notification. Coast Guard Sector Northern New England will cause notice of the enforcement of these temporary safety zones to be made by all appropriate means to affect the widest publicity among the effected segments of the public, including publication in the Local Notice to Mariners and Broadcast Notice to Mariners.

(c) Effective period. This rule is effective from 10 a.m. on May 1, 2010, through 11:59 p.m. on September 29, 2010.

(d) Enforcement period. This section will be enforced for the duration of each event indicated in the table in paragraph (a)(2) of this section. If the event is cancelled due to inclement weather, this section is in effect for the day following the scheduled time listed in the table above. Notification of events held on a rain date will be made by Broadcast Notice to Mariners.

(e) Regulations. (1) The general regulations contained in 33 CFR 165.23 apply. During the enforcement period, entry into, transiting, remaining within, mooring or anchoring within these safety zones is prohibited unless authorized by the Captain of the Port or his designated representatives.

(2) These temporary safety zones are closed to all vessel traffic, except as may be permitted by the Captain of the Port or his designated representatives. Vessel operators given permission to enter or operate in the safety zones must comply with all directions given to them by the Captain of the Port or his designated representatives. Vessels that are granted permission by the Captain of the Port or designated representative to enter or remain within a safety zone may be required to be at anchor or moored to a waterfront facility such that the vessel's location will not interfere with the progress of the event. At all times when a vessel has been granted permission to enter within a safety zone, it shall endeavor to maintain at least 50 yards distance from any event participant unless otherwise directed.

(3) The “designated representative” is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated representative will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.

(4) Vessel operators desiring to enter or operate within the safety zones shall telephone the Captain of the Port at 207-767-0303, or his designated representative via VHF Channel 16 to obtain permission to do so.

(5) The Captain of the Port or his designated representative may delay or terminate any event listed in the events table in paragraph (a)(2) of this section to ensure safety. Such action may be required as a result of weather, vessel traffic density, spectator activities or participant behavior.

Dated: April 27, 2010.

J.B. McPherson,

Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.