2010-764. Safety Zones; Hydroplane Races Within the Captain of the Port Puget Sound Area of Responsibility

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish permanent safety zones for Hydroplane Races to take place on various dates on the waters of Dyes Inlet, Port Angeles and Lake Washington, WA. When these safety zones are activated, and thus subject to enforcement, this rule would limit the movement of non-participating vessels within the established race areas while hydroplane races are taking place. This proposed rule is needed to ensure the safety of the maritime public from inherent dangers associated with high-speed watercraft races on navigable waterways during these events.

DATES:

Comments and related material must be received by the Coast Guard on or before March 22, 2010. Requests for public meetings must be received by the Coast Guard on or before 45 days after date of publication in the Federal Register.

ADDRESSES:

You may submit comments identified by docket number USCG-2009-0996 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail ENS Ashley M. Wanzer, Waterways Management, Sector Seattle, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0996), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov,, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2009-0996” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8½ by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-0996” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one on or before 45 days after date of publication in the Federal Register using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Background and Purpose

The Coast Guard is establishing three permanent safety zones on the waterways of Port Angeles, Dyes Inlet and Lake Washington, WA. These zones are necessary to ensure unencumbered access for rescuers in the event of an emergency and to ensure public safety from the numerous dangers associated with high speed watercraft races. Designating these three areas as hydroplane race areas expedites the process of activating the safety zones for these events to more effectively ensure the safety of the maritime public.

Discussion of Proposed Rule

This proposed rule will create three permanent safety zones on the waters of Dyes Inlet, Port Angeles and Lake Washington, WA to protect the public from the inherent dangers associated with hydroplane races. The first safety zone is located at the northern section of Dyes inlet, west of Port Orchard, WA (all waters north of a line from point 47-37.36N 122-42.29W to 47-37.74N 122-40.64W (NAD 1983)); the second is located at Port Angeles, south of Ediz's Hook, Port Angeles, WA (All waters within the following points: 48-07.4N 123-25.57W; 48-07.43N 123-24.58W; 48-07.2N 123-25.52W; 48-07.25N 123-24.57W0 (NAD 1983)); and the third safety zone is located on Lake Washington, south of interstate 90 bridge and north of Andrew's Bay, WA (all waters east of the shoreline within the following points: 47°34.15′ N, 122°16.40′ W; 47°34.31′ N, 122°15.96′ W; 47°35.18′ N, 122°16.31′ W; 47°35.00′ N, 122°16.71′ W (NAD 1983)).

These safety zones are minimal in size and will be subject to enforcement only during hydroplane racing activities, historically 12 hours or less, with the purpose of most effectively providing safety for participants and to other waterway users. We expect races to occur multiple times throughout the year. Notification of the activation of the safety zone will be provided to the public via broadcast notice to mariners and an on-scene Patrol Commander will be present, allowing commercial vessels to transit the regulated area when safe to do so. Additionally, these safety zones are located in remote locations resulting in a minimal impact to other waterway users.

Regulatory Analyses

We developed this proposed 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 proposed 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 rule is not a significant regulatory action because it will be enforced for short periods of time in small remote areas which are not considered high-density vessel traffic areas.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following small entities: The owners or operators of vessels intending to transit or anchor within the safety zone while enforced on the waters of northern Dyes Inlet, Port Angeles and Lake Washington, Washington. This rule will not have a significant economic impact on a substantial number of small entities due to its short duration, small area and the ability of the on-scene Patrol Commander to allow commercial vessels to transit the regulated area when safe to do so. The only vessels likely to be impacted will be recreational boaters. Because the impact of this proposed rule is expected to be minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule will not have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

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 proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Ashley M. Wanzer, Waterways Management, Sector Seattle, Coast Guard; telephone [phone], e-mail [e-mail]. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

Collection of Information

This proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. This proposed rule involves establishing a safety zone to protect the public from the dangers associated with hydroplane racing. Therefore, this rule is expected to be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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 proposes to amend 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. Chapter 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.xxxx to read as follows:

§ 165.xxxx

Safety Zones; Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility.

(a) Location. The following areas are safety zones for the purpose of reoccurring hydroplane races:

(1) The northern section of Dyes inlet, west of Port Orchard, WA to include all waters of Dyes Inlet north of a line from point 47-37.36N 122-42.29W to 47-37.74N 122-40.64W (NAD 1983).

(2) Port Angeles, south of Ediz's Hook, Port Angeles, WA to include all waters near Port Angeles within the following points: 48-07.4N 123-25.57W; 48-07.43N 123-24.58W; 48-07.2N 123-25.52W; 48-07.25N 123-24.57W (NAD 1983).

(3) Lake Washington, south of interstate 90 bridge and north of Andrew's Bay, WA, to include all waters of Lake Washington east of the shoreline within the following points: 47°34.15′ N, 122°16.40′ W; 47°34.31′ N, 122°15.96′ W; 47°35.18′ N, 122°16.31′ W; 47°35.00′ N, 122°16.71′ W (NAD 1983).

(b) Notice of Enforcement or Suspension of Enforcement. These safety zones will be activated and thus subject to enforcement, under the following conditions: The Coast Guard must receive and approve a marine event permit for each hydroplane event and then the Captain of the Port will cause notice of the enforcement of these safety zones to be made by all appropriate means to effect the widest publicity among the affected segments of the public as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may include but are not limited to, Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners and Local Notice to Mariners notifying the public of activation and suspension of enforcement of these safety zones. Additionally, an on-scene Patrol Commander will ensure enforcement of this safety zone by limiting the transit of non-participating vessel in the designated areas described above.

(c) Definitions. As used in this section, Coast Guard Patrol Commander means any designated commissioned, warrant, or petty officer of the Coast Guard. Additionally, any other Federal, state or local law enforcement agencies or private agencies hired by the sponsoring organization may be designated by the Coast Guard to fulfill the role of the on-scene Patrol Commander. The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters described in paragraph (a) above when this regulation is in effect.

Regulations. (1) When these zones are enforced, non-participant vessels are prohibited from entering the regulated area unless authorized by the designated on-scene Patrol Commander. Spectator craft may remain in designated spectator areas but must follow the directions of the on-scene Patrol Commander. Spectator craft entering, exiting or moving within the spectator area must operate at speeds, which will create a minimum wake. (2) Emergency Signaling. A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the discretion of the Patrol Commander shall serve as a signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

Dated: December 17, 2009.

L.R. Tumbarello,

Commander, U.S. Coast Guard, Captain of the Port, Puget Sound, Acting.