
[Federal Register: May 21, 2009 (Volume 74, Number 97)]
[Rules and Regulations]               
[Page 23793-23795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my09-3]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0089]
RIN 1625-AA00

 
Safety Zone; Red Bull Air Race, Detroit River, Detroit, MI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Detroit River, Detroit, Michigan. This zone will restrict vessels from 
portions of the Detroit River during the Red Bull Air Race. This 
temporary safety zone is necessary to protect spectators and vessels 
from the hazards associated with air races.

DATES: This rule is effective from 9 a.m. on June 11, 2009 through 6:30 
p.m. on June 14, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2009-0089 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-2009-0089 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is 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 CDR Joseph Snowden, Prevention Department, Sector 
Detroit, Coast Guard; telephone (313) 568-9580, e-mail 
Joseph.H.Snowden@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

    On April 16, 2009, we published a notice of proposed rulemaking 
(NPRM) entitled Safety Zone; Red Bull Air Race, Detroit River, Detroit, 
MI in the Federal Register (74 FR 17627). We received one comment on 
the proposed rule. No public meeting was requested, and none was held.
    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 this rule would be 
contrary to the public interest of ensuring, to the extent practicable, 
the safety and security of the spectators and participants during this 
event and immediate action is necessary to prevent possible injury, 
loss of life, or property.

Background and Purpose

    This temporary safety zone is necessary to ensure, to the extent 
practicable, the safety of vessels and spectators from hazards 
associated with an air race. The Captain of the Port Detroit has 
determined air races in close proximity to watercraft and 
infrastructure pose significant risk to public safety and property. The 
likely combination of large numbers of recreation vessels, possible 
alcohol use, airplanes traveling at high speeds and performing aerial 
acrobatics, and large numbers of spectators in close proximity to the 
water could easily result in serious injuries or fatalities. 
Establishing a safety zone around the location of the race course will 
help ensure the safety of persons and property at these events and help 
minimize the associated risks.

Discussion of Comments and Changes

    We received one letter, containing several comments on this 
rulemaking. First, the commenter stated that closure of the Detroit 
River for these air races violates the Boundary Waters Treaty of 1909. 
The Coast Guard disagrees that the Coast Guard's action or the action 
by Canada violates this treaty. The Boundary Waters Treaty does 
guarantee that ``navigation of all navigable boundary waters'' shall be 
``free and open'' to ``inhabitants * * * ships, vessels, and boats'' of 
both the United States and Canada, ``subject, however, to any laws and 
regulations of either country.'' Both the United States and Canada have 
determined, pursuant to each country's laws and regulations, that brief 
closures of the Detroit River are reasonably necessary to protect 
spectators and vessels from hazards associated with these air races. 
Moreover, under fundamental principles of international law, only the 
States that are a party to an international agreement are generally 
entitled to allege a breach of the terms of the agreement by the other. 
For this event, Canada has also agreed that a closure of a small 
portion of the river for a short period of time is a reasonable and 
necessary measure.
    Second, the commenter stated that the proposed rule constituted a 
``public taking'' in contravention of the Fifth Amendment to the United 
States Constitution; in that vessel owners will experience delays that 
will result in lost profits. This commenter did not put forward any 
specific company or vessel that would be so affected. The Coast Guard 
disagrees with this comment. In general, a ``taking'' occurs when a 
governmental entity uses its powers to permanently deprive a person or 
entity of property. The Captain of the Port has considered the needs of 
port stakeholders and the maritime community and has determined that 
this safety zone is necessary to protect the public and maintain safety 
of navigation. Further, the rule is only temporary in nature, not 
permanent, and in the event that this temporary safety zone affects 
shipping, commercial vessels may request permission from the Captain of 
the Port Detroit to transit through the safety zone. Moreover, the 
safety zone will only be enforced for a short period of time on the 
enforcement dates. Lastly, the Coast Guard believes vessel owners have 
had sufficient advance notice of this safety zone, such that they 
should be able to work vessel schedules around the enforcement periods 
of the proposed safety zone to minimize or avoid lost profits.
    Third, the commenter stated that the race sponsor must be required 
to agree in advance to reasonably compensate vessel owners for losses 
incurred by delays and post a bond sufficient to cover anticipated 
vessel losses. Otherwise, this commenter stated, there is no incentive 
for race organizers to work collaboratively with vessel

[[Page 23794]]

operators. The commenter also stated that if a vessel delayed by the 
proposed safety zone missed the closing of the Sault Ste. Marie locks 
at the end of the navigation season in January 2010, then that vessel 
owner should be compensated for any lost cargo transportation 
opportunities by the race sponsors.
    This comment is outside the scope of this rulemaking and the Coast 
Guard disagrees with this comment. The Coast Guard is authorized by 
Congress to provide for safe navigation and vessel safety in U.S. 
waters and to ensure the safety of all waterway users. As such, in this 
rule, the Coast Guard is balancing all competing needs by enforcing the 
safety zone during the air race, but also providing ample notification 
to vessel owners so that they may plan according and thereby reduce or 
avoid lost profits. The Coast Guard does not believe that a 
compensation agreement is necessary in order for the race sponsors to 
work collaboratively with vessel owners. Compensation for vessel delays 
based on the existence of a safety zone is not required under the law. 
Likewise, the Coast Guard has no authority to order the race sponsors 
to post bond or agree to any sort of compensation scheme.

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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary.
    This determination is based on the minimal time that vessels will 
be restricted from the zone; the location of the zone, which is an area 
where the Coast Guard expects insignificant adverse impact to mariners 
from the zone's activation; and the ability of commercial vessels to 
request permission from the Captain of the Port Detroit to transit 
through the safety zone.

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 safety zone located in the Detroit River between 9 
a.m. and 6:30 p.m. on June 11, through June 14, 2009.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will be in effect for short period of time each day it is 
enforced. Additionally, small entities such as passenger vessels, have 
been informed of this event since its planning stages, and have had 
ample time to make alternate arrangements with regards to mooring 
positions and business operations during the hours this safety zone 
will be in place. Furthermore, local sailing and yacht clubs will be 
notified prior to the event by Coast Guard Station Belle Isle with 
information on what to expect during the event with the intention of 
minimizing interruptions in their normal business practices. In the 
event that this temporary safety zone affects shipping, commercial 
vessels may request permission from the Captain of the Port Detroit to 
transit through the safety zone. The Coast Guard will give notice to 
the public via a Broadcast Notice to Mariners that the regulation is in 
effect. Additionally, the COTP will suspend enforcement of the safety 
zone if the event for which the zone is established ends earlier than 
the expected time.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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. We did not receive any comments for this 
section.

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). We did not 
receive any comments for this section.

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. We did not receive any comments for this section.

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. We did 
not receive any comments for this section.

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. We did not receive any comments for this section.

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. We did not receive any comments 
for this section.

[[Page 23795]]

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. We did not receive any comments for 
this section.

Indian Tribal Governments

    The Coast Guard recognizes the treaty rights of Native American 
Tribes. Moreover, the Coast Guard is committed to working with Tribal 
Governments to implement local policies and to mitigate Tribal 
concerns. We have determined that this rule and fishing rights 
protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes 
that have questions concerning the provisions of this rule or options 
for compliance are encouraged to contact the point of contact listed 
under FOR FURTHER INFORMATION CONTACT. We did not receive any comments 
for this section.

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.
    We did not receive any comments for this section.

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. We did not receive 
any comments for this section.

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 event establishes a safety zone, 
therefore paragraph (34)(g) of the Instruction applies.
    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 
recordkeeping requirements, Security measures, Waterways.

0
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

0
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, 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Section 165.T09-0089 is added to read as follows:


Sec.  165.T09-0089  Safety Zone; Red Bull Air Race, Detroit River, 
Detroit, MI.

    (a) Location. The following area is a temporary safety zone: all 
U.S. waters of the Detroit River, Detroit, MI, bound by a line 
extending from a point on land southwest of Joe Louis Arena at position 
42[deg]19.4[min] N; 083[deg]3.3[min] W, northeast along the Detroit 
shoreline to a point on land at position 42[deg]20.0[min] N; 
083[deg]1.2[min] W, southeast to the international boarder with Canada 
at position 42[deg]19.8[min] N; 083[deg]1.0[min] W, southwest along the 
international border to position 42[deg]19.2[min] N; 083[deg]3.3[min] 
W, and northwest to the point of origin at position 42[deg]19.4[min] N; 
083[deg]3.3[min] W. (DATUM: NAD 83).
    (b) Enforcement Period. The safety zone will be enforced daily from 
9 a.m. to 6:30 p.m. on June 11, 2009 through June 14, 2009.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transiting, or anchoring within 
this safety zone is prohibited unless authorized by the Captain of the 
Port Detroit, or his designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port Detroit or his designated on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port 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 on-
scene representative of the Captain of the Port will be aboard either a 
Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or 
his designated on scene representative may be contacted via VHF Channel 
16.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port Detroit or his on-scene 
representative to obtain permission to do so.
    (5) Vessel operators given permission to enter or operate in the 
safety zone must comply with all directions given to them by the 
Captain of the Port or his on-scene representative.

    Dated: May 6, 2009.
F.M. Midgette,
Captain, U.S. Coast Guard, Captain of the Port Detroit.
 [FR Doc. E9-11835 Filed 5-20-09; 8:45 am]

BILLING CODE 4910-15-P
