E9-15602. Safety Zones: Summer 2009 Fireworks, Coastal Massachusetts

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is suspending several special local regulations and establishing temporary safety zones in various communities along the central and northern coastline of Massachusetts. These safety zones will last for the limited duration of the fireworks. The zones are necessary to protect spectators, participants, and vessels from the hazards associated with fireworks displays.

DATES:

This rule is effective from June 27, 2009 through September 5, 2009.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-0422 and are available online by going to http://www.regulations.gov,, selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2009-0422 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. They are also available for inspection or copying at the following location: 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 temporary rule, call or e-mail Ensign Marie Haywood, U.S. Coast Guard, Sector Boston, Waterways Management Division; 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 the Coast Guard was not notified of these events with adequate time to publish a NPRM, for fireworks displays that scheduled to occur on various dates between June 27, 2009 and September 05, 2009. Any delay encountered in the regulation's effective date would be contrary to the public interest, since the safety zones are needed to prevent traffic from transiting a portion of the coastal waters of Massachusetts during the fireworks displays thus ensuring that the maritime public is protected from any potential harm associated with such an event.

For the same reason above, 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.

Background and Purpose

Various Massachusetts coastal cities are having fireworks displays on or near navigable waterways this summer.

In order to maintain continuity between the regulations for fireworks events established in 33 CFR 100.114 and the rain dates requested for the same events this year, this temporary rule suspends several special local regulations entries in 33 CFR PART 100.114 FIREWORKS DISPLAY TABLE. It also establishes temporary safety zones surrounding the events as described in the List of Subjects. The proposed zones will protect the maritime public from the dangers inherent in waterborne fireworks displays. The Captain of the Port does not anticipate any negative impact on vessel traffic due to implementation of these temporary safety zones. Public notifications will be made prior to the effective period of each proposed zone via Broadcast and Local Notice to Mariners.

Discussion of Rule

The Coast Guard is establishing temporary safety zones in various coastal waterways throughout central and northern Massachusetts. The safety zones will be in effect for the times listed in the List of Subjects. Marine traffic will only be restricted from a portion of the waterway as stated in the List of Subjects to protect the safety of the maritime public. Due to the limited time frame of the fireworks display, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via local and 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.

This is not a significant regulatory action because the Coast Guard does not anticipate any negative impact on vessel traffic due to implementation of these temporary safety zones and marine traffic will only be restricted from a portion of the waterway. Public notifications will be made prior to the effective period of each proposed zone via Broadcast and Local Notice to Mariners.

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 proposed rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the effected portion of the coastal waterways of Massachusetts at the times and places listed in the “List of Subjects” section. These safety zones would not have a significant economic impact on a substantial number of small entities for the following reasons: This proposed rule would be in effect for up to three hours, vessel traffic can safely pass around the safety zone during the effected period, and advance notification via broadcast notice to mariners and Local Notice to Mariners will be made before and during the effective period.

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 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 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 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 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 which 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. This rule involves the establishment of safety zone of limited duration. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects

33 CFR Part 100

• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Waterways

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 parts 100 and 165 as follows:

PART 100—MARINE EVENTS AND REGATTAS

1. The authority citation for part 100 continues to read as follows:

Authority: 33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1.

2. Suspend the following entries in § 100.114(a) FIREWORKS DISPLAY TABLE from June 27, 2009 through September 5, 2009:

(a) 7.7

(b) 7.8

(c) 7.10

(d) 7.18

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

3. The authority citation for part 165 continues to read as follows:

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

4. Add § 165.T01-0422 to read:

§ 165T.01-0422

Summer 2009 Fireworks, Coastal Massachusetts.

(a) Location. The following waterborne fireworks events include safety zones as described herein:

(1) Hingham 4th of July Fireworks

Sponsor: Hingham Lions Club.

Enforcement Date: 8 to 10 p.m. on July 3, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Hingham Bay, Hingham, MA. The area within a 200 yard radius of the beach on Button Island at the approximate position 42°15′04″ N, 070°53′02″ W.

(2) Weymouth 4th of July Fireworks.

Sponsor: Town of Weymouth 4th of July Committee

Enforcement Date: 9 p.m. to 10:45 p.m. on July 3, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Weymouth Fore River, Weymouth, MA. All waters surface to bottom extending out in a 500 yard radius of the approximate location 42°15′30″ N, 070°56′06″ W.

(3) Boston Pops Fireworks

Sponsor: Boston 4 Celebrations.

Enforcement Date: 8:30 p.m. through 11:30 p.m. on July 4, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Charles River, Boston, MA. All waters from surface to bottom, within a 400 yard radius of the fireworks barges located in the vicinity of 42°21′26″ N, 71°05′02″ W.

(4) Marblehead 4th of July Fireworks

Sponsor: Town of Marblehead.

Enforcement Date: 8:30 p.m. until 10 p.m. on July 4, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Marblehead Harbor, Marblehead, MA. All waters from surface to bottom, within a 200 yard radius of the fireworks launch site located in Marblehead Harbor at approximate position 42°30′34″ N, 070°50′9″ W.

(5) Salem 4th of July Fireworks

Sponsor: City of Salem.

Date: 9 p.m. until 10:15 p.m. on July 4, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Salem Harbor, Salem, MA. All waters of Salem Harbor, from surface to bottom, within a 100 yard radius of the fireworks launch site located on Derby Wharf approximate position 42°31′8.7″ N, 70°53′8″ W.

(6) New England Sand Sculpting Festival Fireworks

Sponsor: Town of Revere.

Enforcement Date: 9 p.m. to 11 p.m. on July 18, 2009; if postponed, July 19, 2009 at the same times.

Regulated area: All waters of Broad Sound, from surface to bottom, within a 300 yard radius of the fireworks launch site located at Revere Beach at approximate position 42°24′30″ N, 070°59′26″ W.

(7) City of Lynn 4th of July Fireworks

Sponsor: City of Lynn.

Enforcement Date: 6 p.m. through 11 p.m. on July 3, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: All waters of Nahant Bay, from surface to bottom, within a 200 yard radius of the fireworks barge located at approximate location 42°27′37″ N, 070°55′35″ W.

(8) Nahant 4th of July Fireworks

Sponsor: Town of Nahant.

Enforcement Date: 9 p.m. until 11 p.m. on July 4, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: The area of Nahant Harbor within a 200 yard radius of the fireworks launch site on Bailey's Hill Park located at approximate position 42°25′6″ N, 070°55′48″ W.

(9) Celebrate Revere Fireworks

Sponsor: Town of Revere.

Enforcement Date: 9 p.m. to 11 p.m. on August 15, 2009; if postponed, August 16, 2009 at the same times.

Regulated area: Broad Sound, Revere, MA. All waters from surface to bottom, within a 300 yard radius of the fireworks launch site located at Revere Beach at approximate position 42°24′30″ N, 070°59′26″ W.

(10) Beverly Homecoming Fireworks

Sponsor: Beverly Harbormaster.

Enforcement Date: 9 p.m. through 11 p.m. on August 9, 2009.

Regulated area: Beverly Harbor, Beverly, MA. All waters from surface to bottom, within a 200 yard radius of the fireworks barge located at approximate position 42°32′37″ N, 070°52′09″ W.

(11) Beverly 4th of July Fireworks

Sponsor: Beverly Harbormaster.

Enforcement Date: 9 p.m. until 11 p.m. on July 4, 2009; if postponed, July 5, 2009 at the same times.

Regulated area: Beverly Harbor, Beverly, MA. All waters from surface to bottom, within a 200 yard radius of the fireworks barge located at approximate position 42°32′37″ N, 070°52′09″ W.

(12) Surfside Fireworks

Effective Date: From June 27, 2009 through September 5, 2009.

Enforcement Date: Every Saturday evening from 9:30 p.m. through 10:30 p.m.

Regulated area: All waters of the Atlantic Ocean near Salisbury Beach, MA from surface to bottom, within a 200 yard radius of the fireworks barge located at 42°50′36″ N, 070°48′24″ W.

(b) Regulations. “Official Patrol Vessels” consist of any Coast Guard, other Federal, state or local law enforcement, and any public or sponsor-provided vessels assigned or approved by Commander, Sector Boston, to patrol each event.

(1) In accordance with the general regulations in § 165.23 of this part, entering into, transiting through, or anchoring within these zones is prohibited, unless authorized by the Patrol Commander.

(2) Each person in a safety zone who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction.

(3) The Patrol Commander (PATCOM) is empowered to forbid and control the movement of all vessels in the regulated area. The Patrol Commander shall be designated by the Commander, Sector Boston; will be a U.S. Coast Guard commissioned officer, warrant officer or petty officer to act as the Sector Commander's official representative; and will be located aboard the lead official patrol vessel.

(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port (COTP) or the COTP's designated representative to obtain permission by calling the Sector Boston Command Center at 617-223-5761. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative.

(5) The Patrol Commander may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

(c) All coordinates reference 1983 North American Datum (NAD83).

Dated: June 18, 2009.

John N. Healey,

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