[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Rules and Regulations]
[Pages 38918-38921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18631]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0685]
RIN 1625-AA00


Safety Zone: USCG Barque Eagle Transits of Rockland Harbor, ME, 
Portland Harbor, ME and Portsmouth Harbor, NH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary moving safety zone 
excluding all vessels within a 100 yard radius of the U.S. Coast Guard 
Barque EAGLE during the vessel's transit in Rockland Harbor, Penobscot 
Bay, Casco Bay and Portland Harbor in

[[Page 38919]]

Maine as well as during its transit of Portsmouth Harbor, NH. This 
safety zone is needed to protect spectators, event safety vessels and 
others in the maritime community from the safety hazards created by 
sailing a large vessel in close proximity to smaller vessels. Entry 
into this safety zone is prohibited unless authorized by the Captain of 
the Port, Sector Northern New England or his designated representative.

DATES: This rule is effective from 8 a.m. on July 24, 2009 until 6 p.m. 
on August 10, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0685 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-2009-0685 
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 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 Chief Petty Officer Randy Bucklin, U.S. 
Coast Guard Sector Northern New England, Waterways Management Division, 
telephone (207) 741-5440; 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 for the moving 
safety zone 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 details regarding USCG Barque EAGLES's sail through 
the various harbors in Maine and in Portsmouth New Hampshire were not 
available in time to give the public notice and an opportunity to 
comment thus making issuance of an NPRM impractical. Further, a 
cancellation or delay of the EAGLE's sail to accommodate a notice and 
comment period is contrary to the public's interest in ensuring the 
safety of spectators, event safety vessels and other users of the 
waterway.
    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. In addition to the reasons stated 
above, a delay or cancellation of the EAGLE's sail to accommodate 30 
days for publication before the rule becomes effective is contrary to 
the public interest. Further, immediate action is needed to ensure a 
safe, vessel free zone exists around this large sailing vessel as it 
transits the various harbors.

Background and Purpose

    The EAGLE is a large, steel hull sail training ship that is limited 
in its ability to quickly maneuver around smaller vessels. USCGC Barque 
Eagle will be making port calls in Rockland Harbor, ME and Portland 
Harbor ME as well as a port call in Portsmouth NH as part of the marine 
event ``The Tall Ships Visit to Portsmouth Harbor, NH''. This safety 
zone is required to protect persons and vessels from the safety hazards 
associated with a large sailing vessel's limited maneuverability.

Discussion of Rule

    The Coast Guard is establishing a temporary moving safety zone 
excluding all vessels within a 100 yard radius of the USCGC Barque 
Eagle during the transit to the CG Moorings in Rockland Harbor, ME (44-
069.33N 069-06.09W), as it transits outbound into the main channel in 
Penobscot Bay, as it transits inbound to State Pier in Portland Harbor, 
ME (43-39.38N 070-14.45W), as it transits outbound Casco Bay to 
Portland Head Light, inbound to Main State Pier in Portsmouth, NH (43-
05.03N 070-45.65W) for ``The Tall Ships visit to Portsmouth Harbor'' 
marine event while the event is in progress, and as it transits 
outbound Portsmouth Harbor to the 2KR buoy. This safety zone is needed 
to protect spectators, event sponsors' safety vessels, and others in 
the maritime community from the safety hazards that may arise from an 
event of this type. Entry into this safety zone is prohibited unless 
authorized by the Captain of the Port, Sector Northern New England or 
his designated representative.

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 expects the economic impact of this rule to be so 
minimal that a full regulatory evaluation is unnecessary. The effect of 
this rule will not be significant for the following reasons: The safety 
zones will be of limited duration. The events are designed to avoid, as 
much as practicable, deep draft, fishing, and recreational boating 
traffic routes. Vessels may be authorized to transit the zone with 
permission of the Captain of the Port, Sector Northern New England. 
Additionally, maritime advisories will be broadcast during the duration 
of the enforcement periods.

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 may affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
the safety zones. However, this rule will not have a significant 
economic impact on a substantial number of small entities due to the 
minimal time that vessels will be restricted from the areas, the ample 
space available for vessels to maneuver and navigate around the zones, 
and advance notifications will be made to the local community by marine 
information broadcasts.

[[Page 38920]]

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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 creation of a temporary 
safety zone for a limited period of time. An environmental analysis 
checklist and a categorical exclusion determination will be 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. 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T01-0685 to read as follows:


Sec.  165.T01-0685  Safety Zone; USCG Barque Eagle transits of Rockland 
Harbor, ME, Portland Harbor, ME and Portsmouth Harbor, NH.

    (a) Location. The following area is a safety zone: All navigable 
waters within 100 yards in all directions of the United States Coast 
Guard Barque EAGLE (USCGC EAGLE) during its transit and port calls in 
Rockland, ME, Portland, ME and Portsmouth, NH for ``The Tall Ships 
Visit to Portsmouth Harbor, NH''.
    (b) Enforcement periods:
    (1) This rule will be enforced from 8 a.m. on July 24, 2009 to 4 
p.m. on July 27, 2009 in Rockland Harbor, ME;
    (2) This rule will be enforced from 8 a.m. on July 31, 2009 through 
4 p.m. on

[[Page 38921]]

August 3, 2009 in Portland Harbor, ME; and,
    (3) This rule will be enforced from 6 a.m. August 7, 2009 through 6 
p.m. on August 10, 2009 in Portsmouth, NH.
    (c) Regulations:
    (1) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into or movement within this zone by any person or 
vessel are prohibited unless authorized by the Captain of the Port 
(COTP), Sector Northern New England or the COTP's designated 
representative.
    (2) Vessel operators desiring to enter or operate within the safety 
zone may contact the COTP or the COTP's designated representative at 
telephone number 207-767-0303 or designated representative on VHF 
Channel 13 (156.7 MHz) or VHF channel 16 (156.8 MHz) to seek permission 
to do so. If permission is granted, all persons and vessels must comply 
with the instructions provided by the COTP or the COTP's designated 
representative.
    (d) Definitions.
    (1) Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard coxswain, petty officer, or other officer 
operating a Coast Guard vessel and a Federal, State, or local law 
enforcement officer designated by or assisting the Captain of the Port 
(COTP).

    Dated: July 24, 2009.
B.J. Downey, Jr.,
Commander, U.S. Coast Guard, Acting Captain of the Port, Sector 
Northern New England.
[FR Doc. E9-18631 Filed 8-4-09; 8:45 am]
BILLING CODE 4910-15-P