[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Rules and Regulations]
[Pages 30220-30224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15024]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2009-0430]
RIN 1625-AA08


Special Local Regulation for Marine Events; Recurring Marine 
Events in the Fifth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Coast Guard is amending the list of recurring marine 
events within the Fifth Coast Guard District. These regulations make 
small changes to the regulated areas of two permitted marine events 
listed in the table attached to the regulation. These special local 
regulations are necessary to provide for the safety of life on 
navigable waters during marine events. This action will restrict vessel 
traffic in portions of the Chesapeake Bay and Assateague Channel, 
Virginia.

DATES: This interim final rule is effective July 27, 2009. Comments and 
related material must reach the Coast Guard on or before July 10, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0430 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or e-mail, Dennis Sens, Project Manager, Fifth Coast Guard 
District, Prevention Division, 757-398-6204 or e-mail 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

[[Page 30221]]

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0430), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand delivery, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0430'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit comments by mail or hand delivery, submit them in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying and 
electronic filing. If you submit comments by mail and would like to 
know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0430 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting 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.

Regulatory Information

    The Coast Guard is issuing this interim 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 amendments provided make only 
minor changes to the regulated area and enhance the safety of life on 
navigable waters during marine 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. The potential dangers posed to 
event participants and protected wildlife on navigable waterways by 
vessel traffic makes special local regulations necessary. Delaying the 
effective date would be contrary to the public interest, since 
immediate action is needed to ensure the safety of the event 
participants, support vessels, spectator craft and other vessels 
transiting the event area. However, advance notifications will be made 
to users of the affected waterways via marine information broadcasts, 
local notice to mariners, commercial radio stations and area 
newspapers.

Background and Purpose

    Marine events are frequently held on the navigable waters within 
the boundary of the Fifth Coast Guard District. For a description of 
the geographical area of each Coast Guard Sector--Captain of the Port 
Zone, please see 33 CFR 3.25.
    This regulation amends two marine events listed in 33 CFR Part 
100.501, Table to Sec.  100.501. They are event No. 20, The Great 
Chesapeake Bay Bridges Swim Races and Chesapeake Challenge One Mile 
Swim and event No. 42, Pony Penning Swim.
    Annually, the Great Chesapeake Bay Swim, Inc. sponsors the ``The 
Great Chesapeake Bay Bridges Swim Races and Chesapeake Challenge One 
Mile Swim'' on the waters of the Chesapeake Bay near the William P. 
Lane Jr. Memorial (Chesapeake Bay) Bridge. The regulated area is a line 
that runs parallel to both the north and south spans of the bridge and 
includes the waters 500 yards north of the north span and 500 yards 
south of the south span of the bridge. The regulated area listed in the 
Table to Sec.  100.501 for event No. 20 is amended to describe the area 
as follows: The waters of the Chesapeake Bay between and adjacent to 
the spans of the William P. Lane Jr. Memorial Bridge shore to shore 500 
yards north of the north span of the bridge from the western shore at 
latitude 39[deg]00'36'' N, longitude 076[deg]23'53'' W and the eastern 
shore at latitude 38[deg]59'14'' N, longitude 076[deg]20'00'' W; and 
500 yards south of the south span of the bridge from the western shore 
at latitude 39[deg]00'16'' N, longitude 076[deg]24'30'' W and the 
eastern shore at latitude 38[deg]58'39'' N, longitude 076[deg]20'10'' 
W. The regulated area as described is amended to ensure the safety of 
participants and support vessels and in accordance with 33 CFR 100.501 
will be enforced for the duration of the marine event. Due to the need 
for vessel control during the event, vessel traffic will be temporarily 
restricted in this segment of the Chesapeake Bay. Under provisions of 
33 CFR 100.501, during the enforcement period, vessels may not enter 
the regulated area unless they receive permission from the Coast Guard 
Patrol Commander. Vessel traffic may be allowed to transit the 
regulated area only when the Patrol Commander determines it is safe to 
do so.
    Annually, the Chincoteague Volunteer Fire Department sponsors the 
``The Pony Penning Swim'' on the waters of Assateague Channel that runs 
between Chincoteague and Assateague Islands. The regulated area 
includes the waters of Assateague Channel from shoreline to shoreline, 
bounded to the east by a line drawn from latitude 37[deg]55'00'' N, 
longitude 075[deg]22'45'' W, to latitude 37[deg]54'47'' N, longitude 
075[deg]22'45'' W,

[[Page 30222]]

and to the south by a line drawn from latitude 37[deg]54'47'' N, 
longitude 075[deg]22'45'' W, to latitude 37[deg]54'47'' N, longitude 
075[deg]23'04'' W. The regulated area as described, is amended to 
ensure the safety of participants, wildlife and support vessels, and in 
accordance with 33 CFR 100.501 will be enforced for the duration of the 
marine event. Due to the need for vessel control during the event, 
vessel traffic will be temporarily restricted in this segment of 
Assateague Channel. Vessels may not enter the regulated area unless 
they receive permission from the Coast Guard Patrol Commander.
    Specific information on each event, including the exact dates, 
times and description of the regulated area, will be provided to the 
public through a Local Notice to Mariners published before the event, 
as well as through Broadcast Notice to Mariners. The public will also 
be notified about these marine events by local newspapers, radio and 
television stations. The various methods of notification provided by 
the Coast Guard and local community media outlets will facilitate 
informing mariners so they can adjust their plans accordingly.

Discussion of Rule

    The regulated area for ``The Great Chesapeake Bay Bridges Swim 
Races and Chesapeake Challenge One Mile Swim'' is amended to correct 
two reference positions incorrectly listed in the Table to Sec.  
100.501, event No. 20. Specifically, the longitude that describes the 
point north of the northern bridge span near the western shoreline 
should have indicated 53 minutes vice 5 minutes longitude. The latitude 
and longitude that describes the point south of the southern bridge 
span near the eastern shoreline should have indicated 39 minutes 
latitude and 10 minutes longitude vice 38.5 minutes and 6 minutes, 
respectively. This action is not considered a significant change with 
regard to both size of the regulated area and impact on vessels 
transiting the area during the enforcement period. This rule amends 
latitude and longitude points of reference that are located at the 
periphery of the regulated area. The adjustments to latitude and 
longitude discussed in this rule have minimal effect on the overall 
size of the regulated area, particularly where it intersects charted 
navigational channels. This corrective action will further enhance 
safety of event participants, support vessels and local area vessels 
transiting near the regulated area.
    The regulated area for ``The Chincoteague Pony Penning Swim'' is 
amended to correct the description of the regulated area incorrectly 
listed in the Table to Sec.  100.501, event No. 42. The regulated area 
as amended by this rule adjusts the southern boundary line by moving it 
approximately 400 yards to the south along the mid-line of the channel 
and adjusts the eastern boundary by moving it approximately 100 yards 
to the west along the mid-line of the channel. This action is not 
considered a significant change with regard to both size of the 
regulated area and impact on vessels transiting the area during the 
enforcement period. The regulated area encompasses a remote marsh area 
with relatively light vessel traffic. This corrective action will 
further enhance safety of event participants, wildlife, support vessels 
and local area vessels transiting near the regulated area.

Regulatory Analyses

    We developed this interim 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 rule prevents traffic from transiting a portion of 
certain waterways during specified events, the effect of this 
regulation will not be significant due to the limited duration that the 
regulated area will be in effect and the extensive advance 
notifications that will be made to the maritime community via marine 
information broadcasts, local radio stations and area newspapers so 
mariners can adjust their plans accordingly. In some cases vessel 
traffic may be able to transit the regulated area when the Coast Guard 
Patrol Commander deems it is safe to do so.

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 where marine events are being held. 
This regulation will not have a significant impact on a substantial 
number of small entities because it will be enforced only during marine 
events that have been permitted by the Coast Guard Captain of the Port. 
The Captain of the Port will ensure that small entities are able to 
operate in the areas where events are occurring when it is safe to do 
so. In some cases, vessels will be able to safely transit around the 
regulated area at various times, and, with the permission of the Patrol 
Commander, vessels may transit through the regulated area. Before the 
enforcement period, the Coast Guard will issue maritime advisories so 
mariners can adjust their plans accordingly.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this 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 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.

[[Page 30223]]

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)(h), of the Instruction. This rule involves implementation of 
regulations within 33 CFR Part 100 that apply to organized marine 
events on the navigable waters of the United States that may have 
potential for negative impact on the safety or other interest of 
waterway users and shore side activities in the event area. The 
category of water activities includes but is not limited to sail boat 
regattas, boat parades, power boat racing, swimming events, crew 
racing, and sail board racing.
    Under figure 2-1, paragraph (34)(h), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  33 U.S.C. 1233.


0
2. In Sec.  100.501, in the Table to Sec.  100.501, revise number 20 
and number 42, to read as follows:


Sec.  100.501  Special Local Regulations; Marine Events in the Fifth 
Coast Guard District.

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[[Page 30224]]



    Table To Sec.   100.501.--All Coordinates Listed in the Table to Sec.   100.501 Reference Datum NAD 1983.
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     No.               Date                Event               Sponsor                     Location
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                                     Coast Guard Sector Baltimore--COTP Zone
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                                                 * * * * * * *
20...........  June--2nd Sunday...  The Great            Great Chesapeake     The waters of the Chesapeake Bay
                                     Chesapeake Bay       Bay Swim, Inc.       between and adjacent to the spans
                                     Bridges Swim Races                        of the William P. Lane Jr.
                                     and Chesapeake                            Memorial Bridge shore to shore
                                     Challenge One Mile                        500 yards north of the north span
                                     Swim..                                    of the bridge from the western
                                                                               shore at latitude
                                                                               39[deg]00[min]36[sec] N,
                                                                               longitude 076[deg]23[min]53[sec]
                                                                               W and the eastern shore at
                                                                               latitude 38[deg]59[min]14[sec] N,
                                                                               longitude 076[deg]20[min]00[sec]
                                                                               W, and 500 yards south of the
                                                                               south span of the bridge from the
                                                                               western shore at latitude
                                                                               39[deg]00[min]16[sec] N,
                                                                               longitude 076[deg]24[min]30[sec]
                                                                               W and the eastern shore at
                                                                               latitude 38[deg]58[min]39[sec] N,
                                                                               longitude 076[deg]20[min]10[sec]
                                                                               W.
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                                                  * * * * * * *
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                                   Coast Guard Sector Hampton Roads--COTP Zone
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
42...........  July--last           Pony Penning Swim..  Chincoteague         The waters of Assateague Channel
                Wednesday and                             Volunteer Fire       from shoreline to shoreline,
                following Friday.                         Department.          bounded to the east by a line
                                                                               drawn from latitude
                                                                               37[deg]55[min]00[sec] N,
                                                                               longitude 075[deg]22[min]45[sec]
                                                                               W, to latitude
                                                                               37[deg]54[min]47[sec] N,
                                                                               longitude 075[deg]22[min]45[sec]
                                                                               W, and to the south by a line
                                                                               drawn from latitude
                                                                               37[deg]54[min]47[sec] N,
                                                                               longitude 075[deg]22[min]45[sec]
                                                                               W, to latitude
                                                                               37[deg]54[min]47[sec] N,
                                                                               longitude 075[deg]23[min]04[sec]
                                                                               W.
 
                                                  * * * * * * *
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    Dated: June 10, 2009.
Fred M. Rosa, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. E9-15024 Filed 6-24-09; 8:45 am]
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