[Federal Register Volume 73, Number 87 (Monday, May 5, 2008)]
[Proposed Rules]
[Pages 24513-24515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9814]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0327]
RIN 1625-AA00


Safety Zone; Swim the Bay Event, Presque Isle Bay, Erie, PA

AGENCY: Coast Guard, DHS.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Coast Guard proposes establishment of a safety zone for a 
Swimming Race in the Captain of the Port Buffalo zone. This proposed 
rule is intended to restrict vessels from portions of water during 
events that pose a hazard to public safety. The safety zone established 
by this proposed rule is necessary to protect spectators, participants, 
and vessels from the hazards associated with a Swimming Race.

DATES: Comments and related materials must reach the Coast Guard on or 
before June 4, 2008.

ADDRESSES: You may mail comments and related material to Commander, 
Coast Guard Sector Buffalo, 1 Fuhrmann Boulevard, Buffalo, NY 14203. 
Sector Buffalo Prevention Department maintains the public docket for 
this rulemaking. Comments and material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, will become part of this docket and will be available for 
inspection or copying at Coast Guard Sector Buffalo between 8 a.m. and 
3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have further questions on this 
rule, contact Lieutenant Tracy Wirth, U.S. Coast Guard Sector Buffalo, 
at (716) 843-9573.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [USCG-2008-
0327], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commander, Coast Guard Sector 
Buffalo at the address under ADDRESSES explaining why one 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

    Temporary safety zones are necessary to ensure the safety of 
vessels and spectators from the hazards associated with Swimming Races. 
Based on recent accidents that have occurred in other Captain of the 
Port zones, the Captain of the Port Buffalo, has determined Swimming 
races pose significant risks to public safety and property. The likely 
combination of large numbers of recreational vessels, congested 
waterways, and alcohol use, could easily result in serious injuries or 
fatalities.

Discussion of Proposed Rule

    The proposed rule and associated safety zones are necessary to 
ensure the safety of vessels and people during events in the Captain of 
the Port Buffalo area of responsibility that may pose a hazard to the 
public. The proposed safety zone is described in subparagraphs (a) of 
this regulation. The proposed safety zone will be enforced only 
immediately before and during the event which poses hazard to the 
public and only upon notice by the Captain of the Port. The Captain of 
the Port Buffalo will cause notice of enforcement of the safety zone 
established by this section to be made by all appropriate means to the 
affected segments of the public including publication in the Federal 
Register in accordance with 33 CFR 165.7(a). Such means of notification 
may also 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 notifying the public when enforcement of 
the safety zone established by this section is suspended.

Regulatory Evaluation

    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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary.
    The Coast Guard's use of this safety zone will be periodic in 
nature, of short duration, and designed to minimize the impact on 
navigable waters. This safety zone will only be enforced immediately 
before and during the time the event occurs. Furthermore, this safety 
zone has been designed to allow vessels to transit unrestricted to 
portions of the waterway not affected by the safety zone. The Coast 
Guard expects insignificant adverse impact to mariners from the 
activation of this safety zone.

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 proposed rule would affect the following entities, some of 
which might be small entities: The owners or operators of vessels 
intending to transit or anchor in the area designated as the safety 
zone in subparagraph (a) during the date and time the safety zone is 
being enforced. This safety zone would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. The safety zone in this proposed rule would be in effect for 
short periods of time and only once per year. The safety zone has been 
designed to allow traffic to pass safely around the zone whenever 
possible and vessels will be allowed to pass through

[[Page 24514]]

the zone with the permission of the Captain of the Port.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed 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 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LT Tracy Wirth, 
Prevention Department, Coast Guard Sector Buffalo, Buffalo, NY at (716) 
843-9573. 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 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 will not result in such 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

    This proposed rule will not effect the 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 proposed 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

    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 these special local regulations and 
fishing rights protection need not be incompatible. We have also 
determined that this proposed 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 proposed rule or options for compliance are 
encouraged to contact the point of contact listed under FOR FURTHER 
INFORMATION CONTACT.

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 Commandant Instruction 
M16475.lD which guides 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 not likely to 
have a significant impact on the human environment. A preliminary 
``Environmental Analysis Check List'' is available in the docket where 
indicated under ADDRESSES. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from the 
proposed rule.

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 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; 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 Sec.  165.T09-006 to read as follows:

[[Page 24515]]

Sec.  165.T09-006  Safety Zone; Swim the Bay Event, Presque Isle Bay, 
Erie, PA.

    (a) Location. The following area is a temporary safety zone: all 
waters of Presque Isle Bay, Erie, PA starting in position 
47[deg]07'28'' N, 080[deg]07'50'' W heading northwest to position 
42[deg]07'21'' N, 080[deg]08'44'' W then south to 42[deg]07'13'' N, 
080[deg]08'46'' W then east to 042[deg]07'15'' N, 080[deg]08'06'' W. 
The starting and finishing positions are the Erie Yacht Club.
    (b) Effective Period. This regulation is effective from 9 a.m. to 
11 a.m. on June 28, 2007.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) All persons and vessels must comply with the instructions of 
the Coast Guard Captain of the Port or the designated on-scene patrol 
personnel. Coast Guard patrol personnel include commissioned, warrant, 
and petty officers of the U.S. Coast Guard. Upon being hailed by a U.S. 
Coast Guard vessel via siren, radio, flashing light, or other means, 
the operator shall proceed as directed.
    (3) Commercial vessels may request permission from the Captain of 
the Port Buffalo to transit the safety zone. Approval will be made on a 
case-by-case basis. Requests must be made in advance and approved by 
the Captain of the Port before transits will be authorized. The Captain 
of the Port may be contacted via U.S. Coast Guard Sector Buffalo on 
Channel 16, VHF-M.

    Dated: April 14, 2008.
S.J. Ferguson,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
 [FR Doc. E8-9814 Filed 5-2-08; 8:45 am]
BILLING CODE 4910-15-P