[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Rules and Regulations]
[Pages 26607-26609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11276]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0288]
RIN 1625-AA00


Safety Zone; Air Power Over Hampton Roads, Back River, Hampton, 
VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Back River in the vicinity of Hampton, VA. This 
action is necessary to provide for the safety of life on navigable 
waters during the Air Power Over Hampton Roads Air Show. This action is 
intended to restrict vessel traffic movement in the vicinity of 
Willoughby Point, VA to protect mariners from the hazards associated 
with air show events.

DATES: This rule is effective from 5 p.m. on May 13, 2011 through 5 
p.m. on May 15, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0288 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0288 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 LT Michael DiPace, Waterways Management 
Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-
5581, 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 any delay encountered in this 
regulation's effective date by publishing a NPRM would be contrary to 
public interest since immediate action is needed to provide for the 
safety of life and property on navigable waters. 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. Delaying the effective date would be contrary to the public 
interest since immediate action is needed to ensure the safety of the 
event participants, spectator craft, and other vessels transiting the 
event area.

Background and Purpose

    Coast Guard Sector Hampton Roads has been notified that Langley Air 
Force Base will host an air show event in the vicinity of Willoughby 
Point, VA immediately above the Back River, Hampton, VA. The event is 
scheduled to take place May 13, 2011 through May 15, 2011. In recent 
years, there have been unfortunate instances of jets and planes 
crashing during performances at air shows. Along with a jet or plane 
crash, there is typically a wide area of scattered debris that also 
damages property and could cause significant injury or death to 
mariners observing the air show. Due to the need to protect mariners 
transiting on the Back River immediately below the Air Show from the 
hazards associated with a potential jet or plane crash, the Coast Guard 
is establishing a safety zone bound by the following coordinates: 
37[deg]05'35''N/076[deg]20'47'' W; thence to 37[deg]05'43'' N/
076[deg]20'14'' W; thence to 37[deg]05'19'' N/076[deg]20'02'' W; thence 
to 37[deg]05'12'' N/076[deg]20'18'' W (NAD 1983). Access to this area 
will be temporarily restricted for public safety purposes.

Discussion of Rule

    The Coast Guard is establishing a safety zone on specified waters 
of the Back River bound by the following coordinates: 37[deg]05'35'' N/
076[deg]20'47'' W; thence to 37[deg]05'43'' N/076[deg]20'14'' W; thence 
to 37[deg]05'19'' N/076[deg]20'02'' W; thence to 37[deg]05'12'' N/
076[deg]20'18'' W (NAD 1983), in the vicinity of Willoughby Point on 
the Back River, Hampton, Virginia.
    This safety zone is in the interest of public safety during the 
Hampton Roads Air Show and will be enforced from 5 p.m. to 9 p.m. on 
May 13, 2011, from 9 a.m. to 5 p.m. on May 14, and from 9 a.m. to 5 
p.m. on May 15, 2011. Access to the safety zone will be restricted 
during the specified dates and times. Except for vessels authorized by 
the Captain of the Port or his Representative, no person or vessel may 
enter or remain in the safety zone.

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. Although this regulation restricts access 
to the safety zone, the effect of this rule will not be significant 
because: (i) The safety zone will be in effect for a limited duration; 
(ii) the zone is of limited size; (iii) mariners may transit the waters 
in and around this safety zone at the discretion of the Captain of the 
Port or designated representative; and (iv), the Coast Guard will 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 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.

[[Page 26608]]

    The 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 a portion of the Back River from 5 p.m. to 9 p.m. 
on May 13, 2011, from 9 a.m. to 5 p.m. on May 14, and from 9 a.m. to 5 
p.m. on May 15, 2011.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: (i) The 
safety zone will only be in place for a limited duration. (ii) Before 
the enforcement period of May 13, 2011 to May 15, 2011, maritime 
advisories will be issued allowing mariners to 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.

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 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 establishing a 
temporary safety zone. 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, Waterways.
    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 subpart C as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:


[[Page 26609]]


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


0
2. Add temporary Sec.  165.T05-0288, to read as follows:


Sec.  165.T05-0288  Safety Zone; Air Power Over Hampton Roads, Back 
River, Hampton, VA.

    (a) Regulated area. The following area is a safety zone: All waters 
in the vicinity of Willoughby Point on Back River within the area 
bounded by coordinates 37[deg]05'35'' N/076[deg]20'47'' W, thence to 
37[deg]05'43'' N/076[deg]20'14'' W, thence to 37[deg]05'19'' N/
076[deg]20'02'' W, thence to 37[deg]05'12'' N/076[deg]20'18'' W. (NAD 
1983), in Hampton, VA.
    (b) Definition: For purposes of enforcement of 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) Regulation: (1) In accordance with the general regulations in 
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 board a vessel displaying a 
U.S. Coast Guard Ensign; and
    (ii) Proceed as directed by any commissioned, warrant or petty 
officer on board a vessel displaying a U.S. Coast Guard Ensign.
    (3) The Captain of the Port, Hampton Roads, Virginia can be 
contacted at telephone number (757) 638-6637.
    (4) U.S. Coast Guard vessels 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 period: This rule will be enforced from 5 p.m. to 9 
p.m. on May 13, 2011, from 9 a.m. to 5 p.m. on May 14, and from 9 a.m. 
to 5 p.m. on May 15, 2011.

    Dated: April 21, 2011.
Mark S. Ogle,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2011-11276 Filed 5-6-11; 8:45 am]
BILLING CODE 9110-04-P