[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Rules and Regulations]
[Pages 41040-41043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19548]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0523]
RIN 1625-AA00


Safety Zones: Swim Events in Lake Champlain, NY, and VT; Casco 
Bay, Rockland Harbor, Linekin Bay, ME

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 5 temporary safety zones for 
various swim events within the Coast Guard Sector Northern New England 
area, including: the ``Tri for a Cure Triathlon'' in South Portland, 
Maine; the ``Y-Tri for a Cure Triathlon'' in Plattsburg, New York; the 
``Greater Burlington YMCA Lake Swim'' in Burlington, Vermont; the 
``Rockland Breakwater Swim'' in Rockland, Maine and the ``Cabbage 
Island Swim'' in Boothbay Harbor, Maine. These temporary safety zones 
are necessary to provide for the safety of life on the navigable waters 
by prohibiting spectators, vessels, and other users of the waterway 
from entering an area surrounding the participants of the swim events 
due to the hazards associated with multiple swimmers in close proximity 
to operating vessels.

DATES: This rule is effective from 8 a.m. on August 8, 2009 until 12:30 
p.m. on August 29, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0523 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-2009-0523 
in the ``Keyword'' box, and then clicking ``Search.'' 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, 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 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 a notice and comment period would be 
impracticable due to the time constraints resulting from the immediacy 
of the upcoming events. The Coast Guard did not receive notification of 
the exact location or proposed dates for the swim events in sufficient 
time to issue a NPRM for this rulemaking. Further, the expeditious 
implementation of this rule is in the public interest because it will 
help ensure the safety of those involved in participating in the swim 
event, the spectators, and users of the waterway during the swim 
events. Finally, a delay or cancellation of the swim events in order to 
accommodate a notice and comment period is contrary to the public's 
interest in this event occurring as scheduled.
    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. As noted above, the Coast Guard 
finds that it is both impractical and contrary to public interest to 
delay the effective date of this rule for 30 days after publication. 
Immediate action is needed in order to ensure the safety of the 
participants of the swim events, spectators and users of the waterway. 
The public will have some notice after publication in the Federal 
Register for

[[Page 41041]]

the events scheduled near the end of August, specifically the Rockland 
Breakwater Swim.

Background and Purpose

    The ``Tri for a Cure Triathlon''; the ``Y-Tri Triathlon''; the 
``Greater Burlington YMCA Lake Swim''; the ``Rockland Breakwater Swim'' 
and the ``Cabbage Island Swim'' are annual swimming events held in the 
month of August in the towns of Plattsburg, New York; Burlington, 
Vermont; South Portland, Rockland, and Linekin Bay in Boothbay, Maine.
    These regulations will establish fixed safety zones around the 
perimeter of the affected portions of the navigable waters of 
Plattsburg, Burlington, South Portland, Rockland and Linekin Bay. These 
safety zones are designed to protect, spectators from the hazards 
associated with swim events, and to protect the participants from the 
dangers of nearby vessel traffic by preventing entry into the zone 
during the enforcement time unless prior authorization is received by 
the Coast Guard Captain of the Port Sector Northern New England. 
Hazards include the vessels of both spectators and participants the 
risks to participants that could come in contact with vessels as well 
as the associated low visibility of the participants in the swim event.

Discussion of Rule

    This rule creates the following temporary safety zones: ``Y-Tri for 
a Cure Triathlon'': All navigable waters of Lake Champlain within a 200 
foot radius of the participants in the vicinity of Point Au State Park, 
Plattsburg, New York enclosed by an area starting at latitude 
44[deg]46'30'' N, longitude 073[deg]23'26'' W; latitude 44[deg]46'17'' 
N, longitude 073[deg]23'26'' W; latitude 44[deg]46'17'' N, longitude 
073[deg]23'46'' W; latitude 44[deg]46'29'' N, longitude 073[deg]23'46'' 
W; and thence to the beginning. This safety zone will be enforced from 
9 a.m. to 10 p.m. on August 8, 2009;
    ``Greater Burlington YMCA Lake Swim'': All navigable waters of the 
Lake Champlain within a 200 foot radius of the participants in the 
vicinity of North Hero Island, Burlington, Vermont who are swimming in 
an area enclosed by a line starting at latitude 44[deg]46'55'' N, 
longitude 073[deg]22'14'' W; latitude 44[deg]47'08''N, longitude 
073[deg]19'05'' W; latitude 44[deg]46'48''N, longitude 073[deg]17'13'' 
W; latitude 44[deg]46'09''N, longitude 073[deg]16'39'' W; latitude 
44[deg]41'08''N, longitude 073[deg]20'58'' W; and latitude 
44[deg]41'36'' N, longitude 073[deg]23'01'' W. This safety zone will be 
enforced from 8 a.m. to 6 p.m. on August 8, 2009;
    ``Tri for a Cure Triathlon'': all navigable waters of the Casco Bay 
within a 200 foot radius of the participants who are swimming in the 
vicinity of Spring Point Light House, South Portland, Maine, 
specifically within an area enclosed by an area starting at latitude 
43[deg]39'01'' N, longitude 070[deg]13'32'' W; latitude 43[deg]39'07'' 
N, longitude 070[deg]13'29'' W; latitude 43[deg]39'06'' N, longitude 
070[deg]13'41'' W; and latitude 43[deg]39'01'' N, longitude 
070[deg]13'36'' W. This safety zone will be enforced from 7:30 a.m. to 
11 a.m. on August 9, 2009;
    ``Rockland Breakwater Swim'': All navigable waters of Rockland 
Harbor within a 200 foot radius of the participants swimming in the 
vicinity of Rockland Breakwater, Rockland, Maine enclosed by an area 
starting at latitude 44[deg]06'16'' N, longitude 069[deg]04'39'' W; 
latitude 44[deg]06'13'' N, longitude 069[deg]04'36'' W; 44[deg]06'12'' 
N, longitude 069[deg]04'43'' W; latitude 44[deg]06'17'' N, longitude 
069[deg]04'44'' W; and latitude 44[deg]06'17'' N, longitude 
069[deg]04'40'' W. This safety zone will be enforced from 8:30 a.m. to 
12:30 p.m. on August 29, 2009;
    ``Cabbage Island Swim'': All navigable waters of Linekin Bay within 
a 200 foot radius of the participants swimming in the vicinity of 
Cabbage Island and Sprucewold Beach in Boothbay Harbor, Maine enclosed 
by an area starting at latitude 43[deg]50'37'' N, longitude 
069[deg]36'23'' W; latitude 43[deg]50'37'' N, longitude 069[deg]36'59'' 
W; latitude 43[deg]50'16'' N, longitude 069[deg]36'46'' W; and latitude 
43[deg]50'22'' N, longitude 069[deg]36'21'' W. This safety zone will be 
enforced from 1 p.m. to 6 p.m. on August 8, 2009.
    During the times when the safety zones are enforced, vessel traffic 
will be restricted within the designated locations. Entry into these 
zones by any person or vessel will be prohibited unless specifically 
authorized by the Captain of the Port Sector Northern New England, or 
his designated representatives.
    The Coast Guard has determined that the safety zones will not have 
a significant impact on commercial vessel traffic due to the temporary 
nature of the zones' time and scope. The zones have been limited to the 
areas surrounding the events and they will be enforced only during the 
times of the swim event. Public notifications will be made via marine 
information broadcasts during the effective period of these safety 
zones.

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 determined that this rule is not a significant 
regulatory action for the following reasons: The safety zones will be 
of limited duration, cover only a small portion of the navigable 
waterways and the events are designed to avoid, to the extent 
practicable, deep draft, fishing, and recreational boating traffic 
routes. In addition, vessels may be authorized to transit the zone with 
permission of the Captain of the Port Sector Northern New England; and 
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 will affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in the designated safety zones during the enforcement 
periods stated above.
    The safety zones will not have a significant economic impact on a 
substantial number of small entities for the following reasons: The 
safety zones are of limited size and of short duration and vessels that 
can safely do so may navigate in all other portions of the waterways 
except for the area designated as a safety zone. Additionally, before 
the enforcement periods, the Coast Guard will issue

[[Page 41042]]

maritime advisories via marine broadcasts and advisories.

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 the establishment of 
safety zones. An environmental analysis checklist and a categorical 
exclusion determination will be available for review 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.T01-0523 to read as follows:


Sec.  165.T01-0523  Safety Zones: Swim Events in Lake Champlain, NY, 
and VT; Casco Bay, Rockland Harbor, Linekin Bay, ME.

    (a) Locations. The following areas are temporary safety zones:
    (1) For the ``Y-Tri for a Cure Triathlon'': All navigable waters of 
Lake Champlain within a 200-foot radius of the participants swimming in 
the vicinity of Point Au State Park, Plattsburg, New York within an 
area enclosed by a line starting at latitude 44[deg]46'30'' N, 
longitude 073[deg]23'26'' W; thence to latitude 44[deg]46'17'' N, 
longitude 073[deg]23'26'' W; thence to latitude 44[deg]46'17'' N, 
longitude

[[Page 41043]]

073[deg]23'46'' W; thence to latitude 44[deg]46'29'' N, longitude 
073[deg]23'46'' W; and thence to the beginning.
    (2) For the ``Greater Burlington YMCA Lake Swim'': All navigable 
waters of the Lake Champlain within a 200-foot radius of the 
participants swimming in the vicinity of North Hero Island, Burlington, 
Vermont in an area enclosed by a line starting at latitude 
44[deg]46'55'' N, longitude 073[deg]22'14'' W; thence to latitude 
44[deg]47'08'' N, longitude 073[deg]19'05'' W; thence to latitude 
44[deg]46'48'' N, longitude 073[deg]17'13'' W; thence to latitude 
44[deg]46'09'' N, longitude 073[deg]16'39'' W; thence to latitude 
44[deg]41'08'' N, longitude 073[deg]20'58'' W; and thence to latitude 
44[deg]41'36'' N, longitude 073[deg]23'01'' W.
    (3) For the ``Tri for a Cure Triathlon'': All navigable waters of 
Casco Bay within a 200-foot radius of the participants swimming in the 
vicinity of Spring Point Light House in South Portland, Maine within an 
area enclosed by a line starting at latitude 43[deg]39'01'' N, 
longitude 070[deg]13'32'' W; thence to latitude 43[deg]39'07'' N, 
longitude 070[deg]13'29'' W; thence to latitude 43[deg]39'06'' N, 
longitude 070[deg]13'41'' W; and thence to latitude 43[deg]39'01'' N, 
longitude 070[deg]13'36'' W.
    (4) For the ``Rockland Breakwater Swim'': All navigable waters of 
Rockland Harbor within 200-foot radius of the participants swimming in 
the vicinity of Rockland Breakwater, Rockland, Maine within an area 
enclosed by a line starting at latitude 44[deg]06'16'' N, longitude 
069[deg]04'39'' W; thence to latitude 44[deg]06'13'' N, longitude 
069[deg]04'36'' W; thence to latitude 44[deg]06'12'' N, longitude 
069[deg]04'43'' W; thence to latitude 44[deg]06'17'' N, longitude 
069[deg]04'44'' W; and thence to latitude 44[deg]06'18'' N, longitude 
69[deg]04'41'' W.
    (5) For the ``Cabbage Island Swim'': All navigable waters of 
Linekin Bay within a 200-foot radius of the participants swimming in 
the vicinity of Cabbage Island and Sprucewold Beach in Boothbay Harbor, 
Maine within an area enclosed by a line starting at latitude 
43[deg]50'37'' N, longitude 069[deg]36'23'' W; thence to latitude 
43[deg]50'37'' N, longitude 069[deg]36'59'' W; thence to latitude 
43[deg]50'16'' N, longitude 069[deg]36'46'' W; and thence to latitude 
43[deg]50'22'' N, longitude 069[deg]36'21'' W.
    (b) Enforcement Period. The temporary safety zones noted above will 
be enforced during the following dates and times:
    (1) For the ``Y-Tri Triathlon'': August 08, 2009, between 9 a.m. to 
10 p.m.
    (2) For the ``Greater Burlington YMCA Lake Swim'': August 08, 2009, 
between 8 a.m. to 6 p.m.
    (3) For the ``Tri for a Cure Triathlon'': August 09, 2009, between 
7:30 a.m. to 11 a.m.
    (4) For the ``Rockland Breakwater Swim'' August 29, 2009, between 
8:30 a.m. to 12:30 p.m.
    (5) For the ``Cabbage Island Swim'': August 08, 2009, between 1 
p.m. to 6 p.m.
    (c) Regulations.
    (1) In accordance with the general regulations in 33 CFR 165.23, 
during the enforcement period, entry into, transiting, remaining within 
or anchoring in these safety zones is prohibited unless authorized by 
the Captain of the Port Sector Northern New England or his designated 
representatives.
    (2) The ``designated representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
Captain of the Port Sector Northern New England to act on his behalf. 
The designated representative will be aboard either a Coast Guard or 
Coast Guard Auxiliary vessel.
    (3) Vessel operators desiring to enter or operate within the safety 
zones shall contact the Captain of the Port Sector Northern New England 
or his designated representative via VHF Channel 16 to obtain 
permission to do so.
    (4) Vessel operators given permission to enter or operate in the 
safety zones must comply with all directions given to them by the 
Captain of the Port Sector Northern New England or his designated 
representatives.

    Dated: August 4, 2009.
J.B. McPherson,
Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New 
England.
[FR Doc. E9-19548 Filed 8-13-09; 8:45 am]
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