
[Federal Register: June 25, 2010 (Volume 75, Number 122)]
[Rules and Regulations]               
[Page 36292-36294]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn10-6]                         


[[Page 36292]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165
[Docket No. USCG-2010-0529]
RIN 1625-AA00

 
Safety Zone; Bay Swim III, Presque Isle Bay, Erie, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for a 
swimming event in the Captain of the Port Buffalo zone. This rule is 
intended to restrict vessels from areas of water during events that 
pose a hazard to public safety. The safety zone established by this 
rule is necessary to protect participants and vessels from the hazards 
associated with a swimming event.

DATES: This rule is effective from 9 a.m. to 11 a.m. on June 26, 2010.

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-2010-0529 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-0529 in the ``Keyword'' 
box, and then clicking ``Search.'' 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.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0529 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0529 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 Lieutenant Brian Sadler, Waterways 
Management Division Chief, U.S. Coast Guard Sector Buffalo, at Coast 
Guard; telephone 716-843-9573, e-mail Brian.L.Sadler@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 the publishing of an NPRM would be 
impracticable and contrary to public interest since immediate action is 
needed to ensure the public's safety during the swim race. The danger 
posed by the combination of participants swimming in the open water in 
Lake Erie along with motor vessels sharing the same area of water, 
presents a high risk of serious injuries or fatalities. Delaying the 
implementation of the safety zone would subject the public to the 
hazards associated with the event.
    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 the safety of spectators 
and vessels during this event and immediate action is necessary to 
prevent possible loss of life or property.

Basis and Purpose

    Temporary safety zones are necessary to ensure the safety of 
participants and vessels from the hazards associated with swimming 
event. The Captain of the Port Buffalo has determined that swimming 
events present a significant risk to public safety. The likely 
combination of participants swimming in the open water in Lake Erie 
along with motor vessels sharing the same area of water, presents a 
high risk of serious injuries or fatalities.

Discussion of Rule

    A temporary safety zone is necessary to ensure the safety of 
participants, spectators and vessels in conjunction with the Bay Swim 
III swimming event. The safety zone will be effective from 9 a.m. to 11 
a.m. on June 26, 2010. The safety zone will encompass specified waters 
of Presque Isle Bay, Lake Erie, near Erie, Pennsylvania starting at 
position 42[deg]07'34'' N, 80[deg]08'11'' W; then South East to 
42[deg]07'22'' N, 80[deg]07'48'' W; then West to 42[deg]07'24'' N, 
80[deg]08'48'' W; then North East returning to the point of origin to 
form a triangle (DATUM: NAD 83).

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.
    Although this regulation will apply to the specified waters of the 
Lake Erie, the zone will not have a significant impact on small 
entities because the zone will only be in place for a limited duration 
of time and maritime advisories will be issued in advance to allow the 
public to adjust their plans accordingly.

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 temporary final rule may affect the following entities, some 
of which might be small entities: The owners of operators of vessels 
intending to transit or anchor in a portion of Presque Isle Bay, Lake 
Erie, near Erie, Pennsylvania between 9 a.m. to 11 a.m. on June 26, 
2010.
    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 two hours for one day and the safety zone 
will allow vessels to move freely around the safety zone on Presque 
Isle Bay.

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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 that 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 a temporary safety zone and as such 
is covered by this paragraph.
    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, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 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. Chapters 701; 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.


0
2. Add Sec.  165.T09-0529 to read as follows:


Sec.  165.T09-0529  Safety Zone; Bay Swim III, Presque Isle Bay, Erie, 
PA

    (a) Location. The safety zone will encompass specified waters of 
Presque Isle Bay, Erie, Pennsylvania starting at position 
42[deg]07'34'' N, 80[deg]08'11'' W; then South East to 42[deg]07'22'' 
N, 80[deg]07'48'' W; then West to 42[deg]07'24'' N, 80[deg]08'48'' W; 
then returning North East to the point of origin to form a triangle 
(DATUM: NAD 83).
    (b) Effective Period. This regulation is effective from 9 a.m. to 
11 a.m. on June 26, 2010.
    (c) Regulations. (1) In accordance with the general regulations in 
section 165.23 of this part, entry into, transiting, or anchoring 
within an enforced safety

[[Page 36294]]

zone established by this section is prohibited unless authorized by the 
Captain of the Port Buffalo or his on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port Buffalo or his on-scene 
representative.
    (3) The ``on-scene representative'' of the Captain of the Port 
Buffalo, is any Coast Guard commissioned, warrant or petty officer who 
has been designated by the Captain of the Port Buffalo to act on his 
behalf. The on-scene representative of the Captain of the Port Buffalo 
is any Coast Guard commissioned, warrant or petty officer who has been 
designated by the Captain of the Port to act on his behalf.
    (4) Vessel operators desiring to enter or operate within an 
enforced safety zone shall contact the Captain of the Port Buffalo or 
his on-scene representative to obtain permission to do so. The Captain 
of the Port Buffalo or his on-scene representative may be contacted via 
VHF Channel 16. 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 Buffalo, or his on-scene representative.

    Dated: June 15, 2010.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2010-15394 Filed 6-24-10; 8:45 am]
BILLING CODE 9110-04-P

