2011-17983. Safety Zones; Swimming Events in Captain of the Port Boston Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing eight temporary safety zones for marine events within the Captain of the Port (COTP) Boston Zone for swimming events. This action is necessary to provide for the safety of life on navigable waters during the events. Entering into, transiting through, mooring or anchoring within these zones is prohibited unless authorized by the COTP Sector Boston.

DATES:

This rule is effective in the CFR on July 18, 2011 through 11:59 p.m. on September 24, 2011. This rule is effective with actual notice for purposes of enforcement beginning at 8:30 a.m. on July 7, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0533 and are available online by going to http://www.regulations.gov,, inserting USCG-2011-0533 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 temporary rule, call or e-mail MST1 David Labadie of the Waterways Management Division, U.S. Coast Guard Sector Boston; 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 any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters from the hazardous nature of swimming events such as large numbers of swimmers in congested waterways. We spoke with each event sponsor and each indicated they were unable and unwilling to move their event date to a later time. Sponsors stated they are unwilling to reschedule these events because they are held in conjunction with other activities and already scheduled on the most suitable dates where swim event's that are dependent on tide and current conditions predicted for the day will be conducive to the safety of the swim participants. Rescheduling would not be a viable option because most event locations, have fully booked marine event summer schedules making rescheduling unrealistic. These swimming events are all reoccurring annual marine events. The Coast Guard intends to make these safety zones permanent regulations and has submitted a NPRM for submission to the Federal Register requesting public comments. Additionally, the Coast Guard has ordered safety zones or special local regulations for all of these areas for past events and has not received public comments or concerns regarding the impact to waterway traffic from those events. Delaying the effective date by first publishing a NPRM 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 hazardous nature of swimming events.

Basis and Purpose

The legal basis for the temporary rule is 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.

Marine events are frequently held on the navigable waters within the COTP Boston Zone. Based on the potential hazards of swimming events, the COTP Sector Boston has determined that swimming events proximate to watercrafts pose significant risk to public safety and property. The combination of increased numbers of recreation vessels, congested waterways, and large numbers of swimmers in the water has the potential to result in serious injuries or fatalities. In order to protect the safety of all waterway users including event participants and spectators, this temporary rule establishes temporary safety zones for the time and location of each event.

This rule prevents vessels from entering into, transiting through, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the COTP, or the designated representative.

Discussion of Rule

This temporary rule creates safety zones for eight swimming events in the COTP Boston Zone. These events are listed below in the text of the regulation.

Because large numbers of spectator vessels are expected to congregate around the location of these events, the regulated areas are needed to protect both spectators and participants from the safety hazards created by swimming events including marine casualties and the risk of boat collisions with swimmers in the water that may cause death or serious bodily harm. During the enforcement period of the regulated areas, persons and vessels are prohibited from entering into, transiting through, anchoring or mooring within the zone unless specifically authorized by the COTP or the designated representatives. The Coast Guard may be assisted by other federal, state and local agencies in the enforcement of these regulated areas.

The Coast Guard determined that these regulated areas will not have a significant impact on vessel traffic due to their temporary nature and limited size and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas. Additionally, The Coast Guard has ordered safety zones or special local regulations for past events and has not received public comments or concerns regarding the impact to waterway traffic.

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.

Executive Order 12866 and Executive Order 13563

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, 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 regulated areas 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 regulated areas 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 regulated area during the enforcement periods stated for each event in the List of Subjects.

The temporary safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated areas 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 regulated areas. Additionally, before the effective period, the Coast Guard will issue notice of the time and location of each regulated area 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 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 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 temporary safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and record keeping 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; 33 CFR 1.05-1 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T01-0533 to read as follows:

§ 165.T01-0533

Safety Zones; Swimming Events in Captain of the Port Boston Zone.

(a) Regulations. The general regulations contained in 33 CFR 165.23 as well as the following regulations apply to the swimming events listed in TABLE 1 of T01-0533. These regulations will be enforced for the duration of each event. Notifications of exact dates and times of the enforcement period will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners. First Coast Guard District Local Notice to Mariners can be found at http://www.navcen.uscg.gov/​.

(b) Definitions. The following definitions apply to this section:

(1) Designated Representative. Any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port (COTP), Sector Boston, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

(2) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP.

(3) S pectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.

(c) Vessel operators desiring to enter or operate within the regulated areas should contact the COTP or the designated representative via VHF channel 16 to obtain permission to do so.

(d) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP or the designated representative.

(e) Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.

(f) The COTP or the designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.

(g) The regulated area for all swimming events listed in TABLE 1 of T01-0533 is that area of navigable waters within the area described in the table as LOCATION.

Table 1 of T01-0533

6	June
6.1 Cohasset Triathlon	• Date: June 26, 2011.
	• Time: 8:30 a.m. to 10 a.m.
	• Location: All waters in the vicinity of Cohasset Harbor around Sandy Beach, within the following points (NAD 83):
	42°15.6′ N, 070°48.1′ W.
	42°15.5′ N, 070°48.1′ W.
	42°15.4′ N, 070°47.9′ W.
	42°15.4′ N, 070°47.8′ W.
7	July
7.1 Swim Across America Boston	• Date: July 15, 2011.
	• Time: 7 a.m. to 3 p.m.
	• Location: All waters of Boston Harbor between Rowes Warf and Little Brewster Island within the following points (NAD 83):
	42°21.4′ N, 071°03.0′ W.
	42°21.5′ N, 071°02.9′ W.
	42°19.8′ N, 070°53.6′ W.
	42°19.6′ N, 070°53.4′ W
7.2 Swim Across America Nantasket Beach	• Date: July 16, 2011.
	• Time: 9 a.m. to 11 a.m.
	• Location: All waters of Massachusetts Bay near Nantasket Beach within the following points (NAD 83):
	42°16.7′ N, 070°51.9′ W.
	42°16.9′ N, 070°51.3′ W.
	42°16.3′ N, 070°50.5′ W.
	42°16.1′ N, 070°51.0′ W.
8	August
8.1 Sharkfest Swim	• Date: August 8, 2011.
	• Time: 10 a.m. to 12 p.m.
	• Location: All waters of Old Harbor from near Columbia Point to Carson Beach within the following points (NAD 83):
	42°19.1′ N, 071°02.2′ W.
	42°19.2′ N, 071°01.9′ W.
	42°19.7′ N, 071°02.8′ W.
	42°19.4′ N, 071°02.9′ W.
8.2 Celebrate the Clean Harbor Swim	• Date: August 13, 2011.
	• Rain Date: following day.
	• Time: 9 a.m. to 12 p.m.
	• Location: All waters of Gloucester Harbor within the following points (NAD 83):
	42°35.3′ N, 070°39.8′ W.
	42°35.9′ N, 070°39.2′ W.
	42°35.9′ N, 070°39.8′ W.
	42°35.3′ N, 070°40.2′ W.
8.3 Boston Light Swim	• Date: August 13, 2011.
	• Time: 6 a.m. to 12 p.m.
	• Location: All waters of Boston Harbor between the L Street Bath House and Little Brewster Island within the following points (NAD 83):
	42°19.7′ N, 071°02.2′ W.
	42°19.9′ N, 071°10.7′ W
	42°19.8′ N, 070°53.6′ W.
	42°19.6′ N, 070°53.4′ W.
9	September
9.1 Mayflower Triathlon	• Date: September 3, 2011.
	• Time: 7:30 a.m. to 8:30 a.m.
	• Location: All waters of Plymouth Inner Harbor within the following points (NAD 83):
	41°58.3′ N, 070°40.6′ W
	41°58.7′ N, 070°39.1′ W.
	41°56.8′ N, 070°37.8′ W.
	41°57.1′ N, 070°39.2′ W.
9.2 Duxbury Beach Triathlon	• Date: September 24, 2011.
	• Time: 9 a.m. to 10 a.m.
	• Location: All waters of Duxbury Bay on the south side of the Powder Point Bridge within the following points (NAD 83):
	42°02.8′ N, 070°39.1′ W.
	42°03.0′ N, 070°38.7′ W.
	42°02.8′ N, 070°38.6′ W.
	42°02.7′ N, 070°39.0′ W.

Dated: July 7, 2011.

J.N. Healey,

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