[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Proposed Rules]
[Pages 42614-42617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20245]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0725]
RIN 1625-AA00


Safety Zone; Private Fireworks Show, Chesapeake Bay, Virginia 
Beach, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishing a safety zone on 
Chesapeake Bay in the vicinity of the Virginia Beach Resort and 
Conference Center in Virginia Beach, VA in support of a private 
fireworks show. This action is intended to restrict access to the 
specified portion of Chesapeake Bay to protect the public from the 
hazards associated with fireworks displays.

DATES: Comments and related material must be received by the Coast 
Guard on or before September 14, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0725 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

[[Page 42615]]

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 proposed 
rule, call or e-mail LT Tiffany Duffy, United States Coast Guard Sector 
Hampton Roads Waterways Management Division; telephone 757-668-5580, 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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0725), 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 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 deliver, 
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 phone 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, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Proposed Rule'' and insert ``USCG-2009-0725'' in the ''Keyword'' box. 
Click ``Search,'' and then click on the balloon shape in the 
``Actions'' column. If you submit your 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 proposed 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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box, insert USCG-2009-0725 and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' 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 to the docket 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.

Background and Purpose

    On September 26, 2009, Dominion Fireworks will sponsor a private 
fireworks display on the Chesapeake Bay shoreline centered on position 
36[deg]55'17'' N/076[deg]04'14'' W (NAD 1983). Due to the need to 
protect mariners and spectators from the hazards associated with the 
fireworks display, the United States Coast Guard proposes restricting 
access within 420 feet of the fireworks launch site.

Discussion of Proposed Rule

    The Coast Guard proposes establishing a safety zone on the 
navigable waters of the Chesapeake Bay within 420 feet of a fireworks 
barge in position 36[deg]55'17'' N/076[deg]04'14'' W (NAD 1983). This 
safety zone would be established in the vicinity of the Virginia Beach 
Resort & Conference Center, Virginia Beach, VA on September 26, 2009. 
In the interest of public safety, access to the safety zone would be 
restricted from 9 p.m. to 9:30 p.m. on September 26, 2009. Except for 
participants and vessels authorized by the Coast Guard Captain of the 
Port or his representative, no person or vessel would be authorized to 
enter or remain in the regulated area.

Regulatory Analyses

    We developed this proposed 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 proposed 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 would not 
be significant because: (i) The safety zone will be in effect for a 
limited duration; (ii) the zone would be of limited size; and (iii) the 
Coast Guard would make notifications via maritime advisories so 
mariners can adjust their plans accordingly.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic

[[Page 42616]]

impact on a substantial number of small entities for the following 
reasons. This safety zone would be activated, and thus subject to 
enforcement, for only 30 minutes. Vessel traffic could pass safely 
around the safety zone.
    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 to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain 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 want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult LT Tiffany Duffy, 
as indicated in the FOR FURTHER INFORMATION CONTACT section. 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 proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. This proposed rule 
involves establishing a safety zone around a fireworks display. The 
fireworks will be launched from a barge; however, some fallout may 
enter the water within a 420-foot radius of the launching site. This 
zone is designed to protect mariners from the hazards associated with 
fireworks displays. We seek any comments or information that may lead 
to the discovery of a significant environmental impact from this 
proposed rule.

List of Subjects in 33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 
160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland 
Security Delegation No. 0170.1.

    2. Add temporary Sec.  165.T05-0725, to read as follows:

[[Page 42617]]

Sec.  165.T05-0725  Safety Zone; Private Fireworks Show, Chesapeake 
Bay, Virginia Beach, VA.

    (a) Regulated Area. The following area is a safety zone: All 
navigable waters within 420 feet of position 36[deg]55'17'' N/
076[deg]04'14'' W (NAD 1983), in the vicinity of the Virginia Beach 
Resort & Conference Center, Virginia Beach, VA.
    (b) Definitions. As used in this section, 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 and the Sector Duty 
Officer at Sector Hampton Roads in Portsmouth, Virginia can be 
contacted at telephone number 757-668-5555.
    (4) The Captain of the Port Representative enforcing the safety 
zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 
Mhz) and channel 16 (156.8 Mhz).
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (e) Enforcement Period. This rule is effective and will be enforced 
on September 26, 2009, from 9 p.m. to 9:30 p.m.

    Dated: August 11, 2009.
M.S. Ogle,
Captain, U.S. Coast Guard, Captain of the Port Hampton.
[FR Doc. E9-20245 Filed 8-21-09; 8:45 am]
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