[Federal Register Volume 73, Number 121 (Monday, June 23, 2008)]
[Rules and Regulations]
[Pages 35346-35348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14128]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0421]
RIN 1625-AA00


Safety Zone: Central Massachusetts Swim Events

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing safety zones for four swimming 
events in the Captain of the Port Boston zone. This rule is intended to 
restrict vessels from portions of water during events that pose a 
hazard to public safety. The safety zone is necessary to protect 
participants and vessels from the hazards associated with a swim event.

DATES: This rule is effective for various events from June 15, 2008 
through July 12, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-0421 and are available online 
at http://www.regulations.gov. They are also available for inspection 
or copying at two locations: 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, and 
U.S. Coast Guard, Sector Boston, 427 Commercial Street, Boston, MA 
02019 between 7 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Chief Petty Officer Eldridge McFadden at 617-223-
3000. 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. The logistics with respect to the events 
were not provided to the Coast Guard with sufficient time to draft and 
publish an NPRM, making publication of a Notice of Proposed Rulemaking 
for this temporary regulations impractical and contrary to the public 
interest. In addition, the swim events are scheduled

[[Page 35347]]

to occur on June 15, June 29, July 11 and July 12, 2008, and any delay 
in the regulation's effective date would be contrary to the public 
interest since the safety zones are needed to protect swimmers and the 
maritime public from the dangers associated with vessels transiting 
portions of Boston Harbor and Cohasset Harbor during the swim 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.

Background and Purpose

    Temporary safety zones are necessary to ensure the safety of 
vessels and spectators from the hazards associated with swim events. 
Swimming events pose significant risks to public safety and property 
because of the combination of numerous swimmers, high-speed vessels, 
and potentially congested waterways.

Discussion of Rule

    The safety zones established are necessary to ensure the safety of 
vessels and people during events in the Captain of the Port Boston area 
of responsibility, which may pose a hazard to the public. The safety 
zones described in subparagraph (a) for this regulation will be 
enforced only immediately before and during the event. The Captain of 
the Port Boston will inform the public by all appropriate means 
including Broadcast Notice to Mariners, Local Notice to Mariners, and 
on-scene Coast Guard or Coast Guard Auxiliary units.

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.
    The Coast Guard's implementation of these safety zones will be of 
short duration and designed to minimize the impact on navigable waters. 
These safety zones will only be enforced immediately before and during 
the time the swimmers are in the water. Furthermore, these safety zones 
have 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 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 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 areas designated as safety zones in 
subparagraphs (a) during the date and time the safety zones are being 
enforced. These safety zones would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: The safety zones in this rule would be in effect for short 
periods, and vessels may pass outside the zone with the permission of 
the Captain of the Port.

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 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 effect 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

[[Page 35348]]

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 Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, 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 
that there are no factors in this case that would limit the use of a 
categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation. A final environmental analysis checklist and a final 
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 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, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T01-0421 to read as follows:


Sec.  165.T-01-0421  Safety Zones: Central Massachusetts Swim Events.

    (a) Location. The following swim events include safety zones as 
described herein:
    (1) Cohasset Triathlon, Sandy Beach, Cohasset, MA
    (i) All waters in the vicinity of Cohasset Harbor, from surface to 
bottom, within a 200-yard radius around Sandy Beach.
    (ii) Effective Date. This rule will be effective from 7:30 a.m. 
through 9 a.m. on June 29, 2008.
    (2) Swim Across America, Boston, MA to Boston Light, MA
    (i) All waters of Boston Harbor, from surface to bottom, within a 
100-yard radius around the swimmers swimming from Rowes Wharf to Boston 
Light.
    (ii) Effective Date. This rule will be effective from 7 a.m. 
through 3 p.m. on July 11, 2008.
    (3) Swim Across America, Nantasket Beach, Hull, MA
    (i) All waters of Nantasket Beach, from surface to bottom, within a 
100-yard radius around Nantasket Beach.
    (ii) Effective Date. This rule will be effective from 9 a.m. 
through 11 a.m. on July 12, 2008.
    (4) Charles River One Mile Swim, Charles River, Boston, MA
    (i) All waters of Charles River, from surface to bottom, between 
the Longfellow Bridge and the Harvard bridge.
    (ii) Effective Date. This rule will be effective from 7:45 a.m. 
through 9:15 a.m. on June 15, 2008.
    (b) Definition. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer, or any 
federal, state, or local law enforcement officer authorized to enforce 
this regulation on behalf of the Coast Guard Captain of the Port 
(COTP).
    (c) Regulations. (1) In accordance with the general regulations in 
section 165.23 of this part, entry into or remaining in the safety 
zones described in paragraph (a) of this section is prohibited unless 
authorized by the COTP Boston, or the COTP's designated representative.
    (2) Persons desiring to transit within the safety zones established 
in this section may contact the COTP at telephone number 617-223-3008 
or via on-scene patrol personnel on VHF channel 16 to seek permission 
to do so. If permission is granted, all persons and vessels must comply 
with the instructions of the COTP or his or her designated 
representative.

    Dated: June 12, 2008.
Gail P. Kulisch,
Captain, U. S. Coast Guard Captain of the Port, Boston.
[FR Doc. E8-14128 Filed 6-20-08; 8:45 am]
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