
[Federal Register Volume 76, Number 156 (Friday, August 12, 2011)]
[Rules and Regulations]
[Pages 50124-50128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20501]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0671]
RIN 1625-AA00


Safety Zones; August and September Fireworks and Swimming Events 
in Captain of the Port Boston Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones for 
marine events within the Captain of the Port (COTP) Boston Zone. 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 Boston.

DATES: This rule is effective in the CFR from August 12, 2011 to 11:59 
p.m. on September 18, 2011. This rule is effective with actual notice 
for the

[[Page 50125]]

purposes of enforcement from 9 p.m. on August 6 to 10 p.m. on September 
18, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0671 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0671 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 617-223-
3010, e-mail david.j.labadie@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 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 and fireworks events.
    Sponsors stated they are unwilling or unable to reschedule these 
events because they are held in conjunction with other activities or 
because the events are scheduled based on favorable predicted tide and 
current conditions which promote the safety of participants. 
Rescheduling would not be a viable option because most event locations 
have fully booked marine event summer schedules, making rescheduling 
unrealistic.
    The Coast Guard intends to make these safety zones permanent 
regulations and there is a NPRM published in the Federal Register 
requesting public comments under docket number USCG-2011-0109. 
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.
    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. Any delay in the effective date of 
this rule would expose spectators, vessels and other property to the 
hazards associated with pyrotechnics used in the fireworks displays. 
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 
fireworks and 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; Public Law 107-295, 
116 Stat. 2064; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define safety 
zones.
    Based on the potential hazards of swim and fireworks events, the 
COTP Boston has determined that safety zones are necessary 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 various fireworks and 
swim events in the COTP Boston Zone. These events are listed below in 
the text of the regulation.
    Because 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) and by fireworks (including obstructions to the waterway 
that may cause marine casualties and the explosive danger of fireworks 
and debris falling into 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 COTP Boston.

[[Page 50126]]

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.
    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.

[[Page 50127]]

List of Subjects in 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 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.

0
2. Add Sec.  165.T01-0671 to read as follows:


Sec.  165.T01-0671  Safety Zones; August and September Fireworks and 
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 Sec.  165.T01-0671 and the fireworks events listed 
in Table 2 of Sec.  165.T01-0671. 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 COTP 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 Boston.
    (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 should contact the COTP Boston 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 Boston 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 Boston 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 
Sec.  165.T01-0671 and fireworks events in Table 2 of Sec.  165.T01-
0671 is that area of navigable waters within the area described in the 
table as the ``Location.''

                                         Table 1 of Sec.   165.T01-0671
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                 1.8                                                     August
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1.8.1 Gloucester Fisherman's            Date: August 7, 2011.
 Triathlon.
                                        Time: 7 a.m. to 10:30 a.m.
                                        Location: All waters of Gloucester Harbor near Pavillion Beach
                                        within the following points (NAD 83):
                                       42[deg]36.6' N, 070[deg]40.2' W.
                                       42[deg]36.6' N, 070[deg]40.3' W.
                                       42[deg]36.5' N, 070[deg]40.0' W.
                                       42[deg]36.5' N, 070[deg]39.9' W.
1.8.2 Urban Epic Boston Triathlon....   Date: August 8, 2011.
                                        Time: 7 a.m. to 10 a.m.
                                        Location: All waters of Dorchester Bay near Carson Beach within
                                        the following points (NAD 83):
                                       42[deg]19.6' N, 071[deg]2.8' W.
                                       42[deg]19.6' N, 071[deg]2.5' W.
                                       42[deg]19.5' N, 071[deg]2.5' W.
                                       42[deg]19.4' N, 071[deg]2.8' W.
1.8.3 Swim and Fin Race for Salem       Date: August 27, 2011.
 Sound.
                                        Time: 10 a.m. to 2 p.m.
                                        Location: All waters of Salem Sound within the following points
                                        (NAD 83):
                                       42[deg]30.7' N, 070[deg]53.2' W.
                                       42[deg]30.8' N, 070[deg]53.0' W.
                                       42[deg]30.3' N, 070[deg]52.7' W.
                                       42[deg]30.2' N, 070[deg]52.8' W.
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                                         Table 2 of Sec.   165.T01-0671
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                 2.8                                                     August
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2.8.1 Yankee Homecoming Fireworks....   Date: August 6, 2011.
                                        Rain Date: August 7, 2011.
                                        Time: 9 p.m. to 10:30 p.m.

[[Page 50128]]

 
                                        Location: All waters of the Merrimack River near Newburyport,
                                        MA, within a 420-foot radius of position (NAD 83): 42[deg]49.0' N,
                                        070[deg]52.7' W.
2.8.2 Haverhill River Ruckus            Date: August 20, 2011.
 Fireworks.
                                        Rain Date: August 21, 2011.
                                        Time: 9 p.m. to 10 p.m.
                                        Location: All waters of the Merrimack River near Haverhill, MA,
                                        within a 210-foot radius of position (NAD 83): 42[deg]46.3' N,
                                        071[deg]5.1' W.
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2.9                                    September
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2.9.1 Federal Realty Fireworks.......   Date: September 17, 2011.
                                        Rain Date: September 18, 2011.
                                        Time: 8:30 p.m. to 10 p.m.
                                        Location: All waters of the Mystic River near Somerville, MA
                                        within a 280-foot radius of position (NAD 83): 42[deg]23.9' N,
                                        071[deg]4.8' W.
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    Dated: August 2, 2011.
J.N. Healey,
Captain, U. S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2011-20501 Filed 8-11-11; 8:45 am]
BILLING CODE 9110-04-P


