Special Local Regulations and Safety Zones:

As Enacted ( Federal Register)

Cited authorities 10

Cited in

Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)

Rules and Regulations

Pages 39292-39298

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-16892

DEPARTMENT OF HOMELAND SECURITY

Coast Guard 33 CFR Parts 100 and 165

Docket No. USCG-2011-0550

RIN 1625-AA08; 1625-AA00

Special Local Regulations & Safety Zones; Marine Events in

Captain of the Port Long Island Sound Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is establishing fourteen temporary special local regulations and safety zones for marine events and fireworks displays within the Captain of the Port (COTP) Long Island Sound Zone.

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

COTP Sector Long Island Sound.

DATES: This rule is effective in the CFR on July 6, 2011 through 6 p.m. on October 2, 2011. This rule is effective with actual notice for purposes of enforcement beginning at 8:30 p.m. on June 25, 2011.

ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0550 and are available online by going to http://www.regulations.gov, inserting USCG-2011-0550 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 Petty Officer Joseph Graun, Prevention

Department, Coast Guard Sector Long Island Sound, (203) 468-4544, joseph.l.graun@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

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 an NPRM would be contrary to public interest since immediate action is needed to protect both spectators and participants from the safety hazards created by these events including powerboats traveling at high speeds, unexpected pyrotechnics detonation and burning debris. We spoke with each event sponsor and each indicated they were unable and unwilling to move their event date to a later time for the following reasons.

The sponsor for Salute to Veterans fireworks display (the Town of

Hempstead) stated they are unwilling to reschedule their event to a later date because the town expended funds on advertising the current event date. Changing the date would require the town to spend more of their limited funds on advertising. The town was not aware of the requirements for submitting a recurring marine event application 60 days in advance resulting in a late notification to the Coast Guard.

The town is now aware of this reporting requirement.

The sponsors for the town of Islip and Port Jefferson fireworks displays stated they are unwilling to reschedule their events because they are held in conjunction with the Fourth of July holiday and holiday festivities. Since announced, community members have made holiday plans based on these fireworks displays. Rescheduling these events would not be a viable option because most event venues, entertainers and venders have fully booked summer schedules making rescheduling nearly impossible. This year's fireworks displays were originally canceled due to lack of funding; however, funding became available late in May allowing the fireworks displays to take place.

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This unique funding situation which was unpredictable caused the late notification to the Coast Guard. The sponsors are aware of the requirements for submitting a recurring marine event application 60 days in advance.

The Sponsor for Battle on the Bay Powerboat Race is unwilling to reschedule the event because the powerboats that will be racing in the event are part of a traveling circuit with a schedule established more than a year ahead of time, the earliest opportunity to reschedule the event is 2012. In spring the event's host town for the past several years unexpectedly decided not to host this year's event. The event sponsor was surprised and rushed to find a new host town. After a month of meetings with towns and filing permits the sponsors made an agreement with a new town. When that agreement was reached the Coast

Guard was provided less than 90 days notice an insufficient amount of time to publish an NPRM for a new event. This unique host town situation which was unpredictable caused the late notification to the

Coast Guard. The sponsor is aware of the requirements for submitting a new marine event application 135 days in advance.

The sponsors for Xirinachs Family Foundation Fireworks; Icim's 40th

Birthday Party Fireworks and Berman Wedding Fireworks are unwilling to move their events to a later date because they are held in conjunction with other events that cannot be moved. The sponsors were not aware of the requirements for submitting a marine event application 135 days in advance resulting in a late notification to the Coast Guard. The sponsors are now aware of the reporting requirements.

The sponsors for Riverfront US title Series Powerboat Race; Head of the Riverfront Regatta; Fairfield Aerial Fireworks; Town of Babylon

Fireworks; East Hampton Fire Department Fireworks; Village of Island

Park Fireworks and Ports Washington Sons of Italy Fireworks all submitted marine event applications with sufficient notice to the Coast

Guard. These fireworks displays and marine events are all recurring with a proposed permanent rule currently in a public comment period under docket number USCG-2008-0384, titled: Special Local Regulations;

Safety and Security Zones; Recurring Events in Captain of the Port Long

Island Sound Zone. The Coast Guard is establishing these temporary special local regulations and safety zones to provide for safety of life during this year's events. Additionally, the Coast Guard has ordered special local regulations or safety zones for all of these areas during past events and has received no public comments or concerns regarding the impact to waterway traffic from those events.

For the same reasons, 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. 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 both spectators and participants from the safety hazards created by these events including powerboats traveling at high speeds, unexpected pyrotechnics detonation and burning debris.

Basis and Purpose

The legal basis for this rule is 33 U.S.C. 1225, 1226, 1231, 1233; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107- 295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory special local regulations and safety zones. This regulation carries out two related actions: (1) Establishing special local regulations, and (2) establishing safety zones. Marine events are frequently held on the navigable waters within the COTP Long Island

Sound Zone. Based on accidents that have occurred in the past and the explosive hazards of fireworks, the COTP Long Island has determined that regattas and fireworks launches proximate to watercrafts pose significant risk to public safety and property.

To protect the safety of all waterway users including event participants and spectators, this rule establishes temporary special local regulations or safety zones for the time and location of each marine event.

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

Discussion of Rule

This temporary rule establishes special local regulations for all navigable waters around each powerboat race and regatta and safety zones for all navigable waters within a 1000 foot zone around each fireworks display.

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, these regulated areas are needed to protect both spectators and participants from the safety hazards created by them including powerboats traveling at high speeds, unexpected pyrotechnics detonation, and burning debris. During the enforcement periods, persons and vessels are prohibited from entering, transiting through, remaining, anchoring or mooring within the regulated areas unless stipulated otherwise or specifically authorized by the COTP or the designated representative. 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, limited size, and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas.

The Coast Guard has published an NPRM proposing permanent regulated areas for each of these events. The NPRM can be viewed and comments can be submitted by following the procedure under ADDRESSES and typing in docket number USCG-2008-0384. Thus far we have received no comments or requests for a public meeting on the NPRM. Additionally, the Coast

Guard has ordered special local regulations or safety zones for all of these areas during past events and has received no public comments or concerns regarding the impact to waterway traffic from those events.

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.

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Coast Guard has ordered special local regulations or safety zones for all fourteen areas during past events and has received no public comments or concerns regarding impact to waterway traffic from events.

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

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.

The Coast Guard has previously promulgated safety zones or special local regulations, in accordance with 33 CFR Parts 165 and 100, for all event areas contained within this proposed regulation and has not received notice of any negative impact caused by any of the safety zones or special local regulations.

No new or additional restrictions will be imposed on vessel traffic.

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 list below in the regulatory text.

The temporary special local regulations and 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, notifications will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the events.

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

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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)&(h), of the Instruction. This rule involves the establishment of temporary special local regulations and safety zones.

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 recording requirements, Waterways. 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 parts 100 and 165 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS 0 1. The authority citation for part 100 continues to read as follows:

Authority: 33 U.S.C. 1233. 0 2. Add Sec. 100.T01-0550 to read as follows:

Sec. 100.T01-0550 Special Local Regulations; Regattas and Boat Races in the Coast Guard Sector Long Island Sound Captain of the Port Zone.

(a) Regulations.

The following regulations apply to the marine events listed in the

Table to Sec. 100.T01-0550. These regulations will be enforced for the duration of each event, on or about the dates indicated.

These regulations will be enforced for the duration of each event.

Notifications will be made to the local maritime community through the

Local Notice to Mariners and Broadcast Notice to Mariners in advance of the events. 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. A ``designated representative'' is any Coast Guard commissioned, warrant or petty officer of the U.S.

Coast Guard who has been designated by the Captain of the Port, Sector

Long Island Sound (COTP), 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) Spectators. 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 shall contact the COTP or the designated representative via VHF channel 16 or by telephone at (203) 468-4404 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 designated representative.

(e) The COTP or designated representative may control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. 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 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) For all events listed, vessels not participating in this event, swimmers, and personal watercraft of any nature are prohibited from entering or moving within the regulated area unless stipulated otherwise or authorized by the COTP or a designated representative.

Vessels within the regulated area must be at anchor within a designated spectator area or moored to a waterfront facility in a way that will not interfere with the progress of the event.

Table to Sec. 100.T01-0550

1. Battle on the Bay Powerboat Race.... Event type: Boat race.

Date & time: August 27 and 28, 2011 7 a.m. until 7 p.m.

Locations: All waters of the Great South Bay, Islip,

NY within the following zones:

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(1) The Race Course Zone forms a quadrilateral shape

The eastern boundary begins at the tip of the Brown

Creek western jetty approximate position 40[deg]43'18'' N, 073[deg]04'10'' W continues south to 40[deg]42'38'' N, 073[deg]04'05'' W, The southern boundary begins at 40[deg]42'38'' N, 073[deg]04'05'' W continues west to 40[deg]42'07'' N, 073[deg]07'50'' W, the western boundary begins at 40[deg]42'07'' N, 073[deg]07'50'' W continues north to 40[deg]43'12'' N, 073[deg]06'38'' W the northern boundary begins at 40[deg]43'12'' N, 073[deg]06'38'' W continues east to land at 40[deg]43'12'' N, 073[deg]06'38'' W and continues along the shore to tip of the Brown Creek western jetty 40[deg]43'18'' N, 073[deg]04'10'' W (NAD 83).

(2) Spectator anchorage zone, all waters within 100 yards of the Race Course

Zones southern boundary.

(3) Transit Only zone, all waters within 100 yards of the Race Course Zones eastern, western and northern boundaries.

Additional stipulations:

(1) Vessel within the spectator anchorage zone must operate at a no wake speed not to exceed 5 knots and must proceed as directly as possible to and from an anchorage location.

(2) Vessels within the transit only zone must maintain a steady course and speed anchoring, stopping, mooring and other activities are prohibited within this zone.

2. Riverfront U.S. Title series

Event type: Boat race.

Powerboat Race, Hartford, CT.

Date & time: September 2 and 3, 2011, 10 a.m. until 6 p.m. and

September 4, 2011, 12:01 p.m. until 6 p.m.

Location: All water of the Connecticut River,

Hartford, CT, between the

Founders Bridge on the North approximate position 41[deg] 45'53.47'' N, 072[deg] 39'55.77'' W and 41[deg] 45'37.39'' N, 072[deg] 39'47.49'' W (NAD 83) to the

South.

3. Head of the Riverfront Regatta...... Event Type: Rowing regatta.

Date & time: October 2, 2011 6 a.m. until 6 p.m.

Location: All water of the Connecticut River,

Hartford, CT, between the

Putnum Bridge 41[deg]42.87' N 072[deg]38.43' W and the

Riverside Boat House 41[deg]46.42' N 072[deg]39.83'

W (NAD 83).

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 0 3. The authority citation for Part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701; 50

U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation

No. 0170.1. 0 4. Add Sec. 165.T01-0550 to read as follows:

Sec. 165.T01-0550 Safety Zones; Fireworks Displays in Captain of the

Port Long Island Sound Zone

(a) Regulations.

The general regulations contained in 33 CFR 165.23 as well as the following regulations apply to the fireworks displays listed in Table 1 of T01-0550.