[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Rules and Regulations]
[Pages 19424-19426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9798]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0263]
RIN 1625-AA00


Safety Zone; Mill Creek, Fort Monroe, VA, USNORTHCOM Civic Leader 
Tour and Aviation Demonstration

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone on Mill Creek in 
the vicinity of the Fort Monroe Military Reservation, VA during the 
USNORTHCOM Civic Leader Tour Event and Aviation Demonstration. This 
action is intended to restrict vessel traffic movement in the vicinity 
of Mill Creek to protect mariners and the public from the hazards 
associated with aviation events.

DATES: This rule is effective from 9 a.m. until 11:30 a.m. and from 
1:30 p.m. to 4 p.m. on April 28, 2009, and from 2:30 p.m. to 4:30 p.m. 
on April 29, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0263 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-2009-0263 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Tiffany Duffy, Chief, 
Waterways Management, Sector Hampton Roads, Coast Guard; telephone 757-
668-5580, e-mail [email protected]. 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 delaying the effective date would be 
contrary to the public interest since immediate action is needed to 
ensure the safety of the public and mariners during the aviation 
demonstration.
    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 the effective date would 
be contrary to the public interest since immediate action is needed to 
ensure the safety of the public and mariners during the aviation 
demonstration.

Background and Purpose

    Coast Guard Sector Hampton Roads has been notified that the Fort 
Monroe Military Reservation will host an aviation event in the vicinity 
of Fort Monroe Military Reservation immediately adjacent to Mill Creek, 
VA. The event is scheduled to occur on April 29, 2009, with a rehearsal 
day on April 28, 2009. In recent years, there have been unfortunate 
instances of crashes during aviation demonstrations. Accompanying a 
plane crash, there is typically a wide area of scattered debris that 
may also damage property and cause significant injury or death to those 
observing the demonstration. Due to the need to protect the public and 
mariners transiting on Mill Creek in the vicinity of the demonstration 
from the hazards associated with a potential crash, the Coast Guard is 
establishing a safety zone bound by a 1,320 foot radius around 
approximate position 37[deg]04'04'' N/076[deg]18'04'' W (NAD 1983). 
Access to this area will be temporarily restricted for public safety 
purposes.

Discussion of Rule

    The Coast Guard is establishing a 1,320 foot radius safety zone on 
specified waters of Mill Creek around approximate position 
37[deg]04'04'' N/076[deg]18'04'' W (NAD 1983) in the vicinity of the 
Fort Monroe Military Reservation, Virginia. This safety zone is 
proposed in the interest of public safety during the USNORTHCOM Civic 
Leader Tour Aviation Demonstration and will be enforced from 9 a.m. to 
11:30 a.m. and 1:30 p.m. to 4 p.m. on April 28, 2009, and from 2:30 
p.m. to 4:30 p.m. on April 29, 2009. Access to the safety zone will be 
restricted during the specified dates and times. Except for vessels 
authorized by the Captain of the Port or his Representative, no person 
or vessel may enter or remain in the safety zone.

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 restricts access 
to the safety zone, the effect of this rule will not be significant 
because: (i) the safety zone will be in effect for a limited duration; 
(ii) the safety zone is of limited size; and (iii) the Coast Guard will 
make notifications via maritime advisories so mariners can adjust their 
plans accordingly so as to avoid any potential delays in transit. For 
the above reasons, the Coast Guard does not anticipate any significant 
economic impact.

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

[[Page 19425]]

vessels intending to transit or anchor in a portion of Mill Creek from 
9 a.m. to 11:30 a.m. and from 1:30 p.m. to 4 p.m. on April 28, 2009, 
and from 2:30 p.m. to 4:30 p.m. on April 29, 2009.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The 
safety zone will only be in place for a limited duration and is of a 
limited size. Before the effective period, the Coast Guard will issue 
maritime orders allowing mariners to adjust their plans accordingly so 
as to avoid any potential delays in transit.

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 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 a temporary safety zone 
that will be in effect for less than one week and is intended to keep 
the public and mariners safe from the hazards associated with aviation 
displays. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects 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. 3306, 3703 and 
Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 
160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland 
Security Delegation No. 0170.1.


0
2. Add Sec.  165.T05-0263 to read as follows:

[[Page 19426]]

Sec.  165.T05-0263  Safety Zone: Mill Creek, Fort Monroe, VA, 
USNORTHCOM Civic Leader Tour and Aviation Demonstration.

    (a) Regulated Area. The following area is a safety zone: All waters 
in the vicinity of the Fort Monroe Military Reservation on Mill Creek 
within a 1,320 foot radius of position 037[deg]04'04'' N/
076[deg]18'04'' W (NAD 1983).
    (b) Definition: For the purposes of this part, Captain of the Port 
Representative: means any U.S. Coast Guard commissioned, warrant or 
petty officer who has been authorized by the Captain of the Port, 
Hampton Roads, Virginia to act on his behalf.
    (c) Regulations: (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port, Hampton Roads or his designated 
representatives.
    (2) The operator of any vessel in the immediate vicinity of this 
safety zone shall:
    (i) Stop the vessel immediately upon being directed to do so by any 
commissioned, warrant or petty officer on shore or on board a vessel 
that is displaying a U.S. Coast Guard Ensign.
    (ii) Proceed as directed by any commissioned, warrant or petty 
officer on shore or on board a vessel that is displaying a U.S. Coast 
Guard Ensign.
    (3) The Captain of the Port, Hampton Roads can be contacted on VHF-
FM marine band radio channel 16 (156.8 Mhz) or at telephone number 757-
668-5555.
    (4) The Coast Guard Representatives enforcing the safety zone can 
be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and 
channel 16 (156.8 Mhz). (d) Enforcement Period: This regulation will be 
enforced from 9 a.m. to 11:30 a.m. and from 1:30 p.m. to 4 p.m. on 
April 28, 2009, and from 2:30 p.m. to 4:30 p.m. on April 29, 2009.

    Dated: April 10, 2009.
J.P. Novotny,
Commander, U.S. Coast Guard, Captain of the Port, Hampton Roads, 
Acting.
[FR Doc. E9-9798 Filed 4-28-09; 8:45 am]
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