[Federal Register Volume 75, Number 69 (Monday, April 12, 2010)]
[Proposed Rules]
[Pages 18451-18454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8204]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0073]
RIN 1625-AA87


Safety and Security Zones; Tall Ships Challenge 2010, Great 
Lakes; Cleveland, OH; Bay City, MI; Duluth, MN; Green Bay, WI; Chicago, 
IL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish temporary safety and 
security zones around each Tall Ship visiting the Great Lakes during 
the Tall Ships Challenge 2010 race series. These safety and security 
zones will provide for the regulation of vessel traffic in the vicinity 
of each Tall Ship in the navigable waters of the United States. The 
Coast Guard is taking this action to safeguard participants and 
spectators from the hazards associated with the limited maneuverability 
of these Tall Ships and to ensure public safety during Tall Ships 
events.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 12, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0073 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.

[[Page 18452]]

    To avoid duplication, please use only one of these 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 Yamaris Barril, Inspections, Prevention 
Department, Ninth Coast Guard District, Cleveland, OH via telephone at 
(216) 902-6343, or e-mail at [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-2010-0073), 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 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, 
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-2010-0073'' in the ``Keyword'' box. 
Click ``Search'' 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 
the 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-2010-0073'' 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 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

    These temporary safety and security zones are necessary to protect 
the Tall Ships from potential harm and to protect the public from the 
hazards associated with the limited maneuverability of these types of 
ships. Due to the high profile nature and extensive publicity 
associated with this event, each Captain of the Port (COTP) expects a 
large number of spectators in confined areas along the navigable waters 
of the United States. Therefore, the Coast Guard is proposing to 
implement a safety and security zone around each ship to ensure the 
safety of all Tall Ships while they operate throughout the Great Lakes. 
The combination of large numbers of recreational boaters, congested 
waterways, boaters crossing commercially transited waterways, and low 
maneuverability of the Tall Ships could easily result in serious 
injuries or fatalities.

Discussion of Proposed Rule

    This proposed temporary final rule is intended to ensure the safety 
of the public and vessels during the Tall Ships Challenge 2010. Tall 
Ships will be participating in parades and then mooring for official 
events in the harbors of Cleveland, OH; Bay City, MI; Duluth, MN; Green 
Bay, WI; and Chicago, IL. Tall Ships may also visit other harbors while 
in the Great Lakes.
    The Coast Guard proposes to establish temporary safety and security 
zones around each Tall Ship participating in these events. These safety 
and security zones will move with the Tall Ships as they travel 
throughout the Great Lakes. The safety and security zones will be 
effective from 12:01 a.m. June 23, 2010 through 12:01 a.m. on September 
13, 2010.
    Upon the navigable waters of the United States, except as discussed 
below, no vessel or person is allowed within 100 yards of a Tall Ship 
that is underway or at anchor, unless authorized by the Captain of the 
Port or the on-scene Official Patrol. Any vessel authorized to enter 
into a Tall Ship safety and security zone must operate at the minimum 
speed necessary to maintain a safe course and must proceed as directed 
by the on-scene Official Patrol. Even if operating within a Tall Ship 
safety and security zone under proper authority, except as discussed in 
the following paragraph, no vessel or person is allowed within 25 yards 
of a Tall Ship. In addition, upon the navigable waters of the United 
States, no vessel or person is allowed within 25 yards of any Tall Ship 
that is moored.
    Vessels constrained by their navigational draft or restricted in 
their ability to maneuver are permitted to transit, in accordance with 
the Navigational Rules, within 100 yards of a Tall Ship in order to 
ensure a safe passage. When navigational constraints of channels, 
rivers, or waterways prohibit vessels from remaining 100 or more yards 
from a Tall Ship, such vessels are permitted to enter a security

[[Page 18453]]

and safety zone but must remain at the greatest possible distance away 
from the Tall Ships while operating at the minimum speed necessary to 
maintain a safe course.
    The Coast Guard expects the temporary final rule will be effective 
less than 30 days after publication in the Federal Register because 
delaying the effective date would be contrary to the public interest 
due to the need to protect the public from the dangers associated with 
the limited maneuverability during Tall Ships events.

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. We conclude that this 
proposed rule is not a significant regulatory action because we 
anticipate that it will have minimal impact on the economy, will not 
interfere with other agencies, will not adversely alter the budget of 
any grant or loan recipients, and will not raise any novel legal or 
policy issues. The safety and security zone around each Tall Ship will 
be relatively small. Because the safety and security zones will move 
along the Tall Ships course through the Great Lakes, the zones will 
exist for only a minimal time in any one particular geographical area 
and restrictions on vessel movement within any particular geographical 
area of the Great Lakes is expected to be minimal. Additionally, under 
certain conditions vessels may still transit through the safety and 
security zone when permitted by proper authority.

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 impact on a substantial 
number of small entities because each zone will be relatively small and 
vessels may still transit through a zone with permission from the 
Official Patrol or when navigation restraints require. However, this 
proposed 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 an area of water in which a participating Tall 
Ship is transiting, anchored, or moored between 12:01 a.m. on June 23, 
2010 and 12:01 a.m. on September 13, 2010.
    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 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 contact LT Yamaris Barril, 
Inspections, Ninth Coast Guard District, Cleveland, OH at (216) 902-
6343. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed 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 (adjusted for 
inflation) 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 cause 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

[[Page 18454]]

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 that do not individually or cumulatively have a significant 
effect on the human environment. A preliminary environmental analysis 
checklist supporting this determination is available in the docket 
where indicated under ADDRESSES. This proposed rule involves the 
establishment of a safety and security zone around each Tall Ship 
participating in the Tall Ships Challenge 2010 race series. Based on 
our preliminary determination, there are no factors in this case that 
would limit the use of a categorical exclusion under section 2.B.2 
figure 2-1, paragraph (34)(g) of the Instruction and neither an 
environmental assessment nor a environmental impact statement is 
required.
    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. Chapter 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 Sec.  165.T09-0073 to read as follows:


Sec.  165.T09-0073  Safety and Security Zones; Tall Ships Challenge 
2010; Great Lakes; Cleveland, OH; Bay City, MI; Duluth, MN; Green Bay, 
WI; Chicago, IL

    (a) Definitions. The following definitions apply to this section:
    Navigation Rules means the Navigation Rules, International and 
Inland (See, 1972 COLREGS and 33 U.S.C. 2001 et seq.).
    Official Patrol means those persons designated by Captain of the 
Port Buffalo, Detroit, Sault Ste. Marie, Duluth and Lake Michigan to 
monitor a Tall Ship safety and security zone, permit entry into the 
zone, give legally enforceable orders to persons or vessels within the 
zone, and take other actions authorized by the cognizant Captain of the 
Port.
    Public Vessel means vessels owned, chartered, or operated by the 
United States or by a State or political subdivision thereof.
    Tall Ship means any sailing vessel participating in the Tall Ships 
Challenge 2010 in the Great Lakes. This includes, but is not limited 
to, the following: Sailing Vessel (S/V) AMISTAD, S/V APPLEDORE IV, S/V 
APPLEDORE V, HMS BOUNTY, S/V DENIS SULLIVAN, S/V EUROPA, S/V FAZISI, S/
V FRIENDS OF GOOD WILL, S/V INLAND SEAS, S/V LAREVENANTE, S/V LYNX, S/V 
MADELINE, S/V FLAGSHIP NIAGARA, S/V PATHFINDER, S/V PLAYFAIR, S/V PRIDE 
OF BALTIMORE II, S/V ROALD AMUNDSEN, S/V RED WITCH, S/V ROTALISTE, S/V 
ROSEWAY, S/V UNICORN, S/V WELCOME, and S/V WINDY.
    (b) Location. The following area is a safety and security zone: all 
navigable waters of the United States located in the Ninth Coast Guard 
District within a 100 yard radius of any Tall Ship.
    (c) Regulations. (1) Entry into a safety and security zone 
described in paragraph (b) of this section is prohibited unless 
authorized by the cognizant Coast Guard Captain of the Port or the 
Official Patrol.
    (2) Vessels may request permission to enter into a safety and 
security zone described in paragraph (b) of this section by contacting 
the Official Patrol on VHF channel 16.
    (3) Any vessel operating within a safety and security zone 
established by this section must operate at the minimum speed necessary 
to maintain a safe course and must proceed as directed by the Captain 
of the Port or the on-scene Official Patrol. Any vessel or person 
allowed to enter a safety and security zone established by this section 
must still remain at least 25 yards from any Tall Ship, unless 
authorized to come within such a distance pursuant to paragraph (c)(4) 
of this section or permitted to come within such a distance by the 
cognizant Captain of the Port, his or her designated representative, or 
the on-scene Official Patrol.
    (4) Vessels are permitted to transit through the safety and 
security zone in waterways that do not provide adequate navigable 
waters greater than 100 yards from the Tall Ships. Vessels transiting 
such areas must operate at the minimum speed necessary to maintain a 
safe course while also maintaining the greatest possible distance away 
from the Tall Ships.
    (d) Effective period. This rule is effective from 12:01 a.m. on 
Wednesday, June 23, 2010 through 12:01 a.m. on Monday September 13, 
2010.
    (e) Navigation Rules. The Navigation Rules must apply at all times 
within a Tall Ships safety and security zone.
    (f) When a Tall Ship approaches within 25 yards of any vessel that 
is moored or anchored, the stationary vessel must stay moored or 
anchored while it remains within the Tall Ship's safety and security 
zone unless ordered by or given permission from the cognizant Captain 
of the Port, his or her designated representative, or the on-scene 
official patrol to do otherwise.

    Dated: March 30, 2010.
Lorne W. Thomas,
Captain, U.S. Coast Guard, Acting Commander, Ninth Coast Guard 
District.
[FR Doc. 2010-8204 Filed 4-9-10; 8:45 am]
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