[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 42048-42052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17983]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0533]
RIN 1625-AA00


Safety Zones; Swimming Events in Captain of the Port Boston Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing eight temporary safety zones 
for marine events within the Captain of the Port (COTP) Boston Zone for 
swimming events. This action is necessary to provide for the safety of 
life on navigable waters during the events. Entering into, transiting 
through, mooring or anchoring within these zones is prohibited unless 
authorized by the COTP Sector Boston.

DATES: This rule is effective in the CFR on July 18, 2011 through 11:59 
p.m. on September 24, 2011. This rule is effective with actual notice 
for purposes of enforcement beginning at 8:30 a.m. on July 7, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0533 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0533 in the 
``Keyword''

[[Page 42049]]

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 MST1 David Labadie of the Waterways 
Management Division, U.S. Coast Guard Sector Boston; telephone 617-223-
3010, 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 from the hazardous 
nature of swimming events such as large numbers of swimmers in 
congested waterways. We spoke with each event sponsor and each 
indicated they were unable and unwilling to move their event date to a 
later time. Sponsors stated they are unwilling to reschedule these 
events because they are held in conjunction with other activities and 
already scheduled on the most suitable dates where swim event's that 
are dependent on tide and current conditions predicted for the day will 
be conducive to the safety of the swim participants. Rescheduling would 
not be a viable option because most event locations, have fully booked 
marine event summer schedules making rescheduling unrealistic. These 
swimming events are all reoccurring annual marine events. The Coast 
Guard intends to make these safety zones permanent regulations and has 
submitted a NPRM for submission to the Federal Register requesting 
public comments. Additionally, the Coast Guard has ordered safety zones 
or special local regulations for all of these areas for past events and 
has not received public comments or concerns regarding the impact to 
waterway traffic from those events. Delaying the effective date by 
first publishing a NPRM would be contrary to the rule's objectives of 
ensuring safety of life on the navigable waters during these scheduled 
events as immediate action is needed to protect persons and vessels 
from the hazardous nature of swimming events.

Basis and Purpose

    The legal basis for the temporary rule is 33 U.S.C. 1226, 1231; 46 
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 
116 Stat. 2064; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define safety 
zones.
    Marine events are frequently held on the navigable waters within 
the COTP Boston Zone. Based on the potential hazards of swimming 
events, the COTP Sector Boston has determined that swimming events 
proximate to watercrafts pose significant risk to public safety and 
property. The combination of increased numbers of recreation vessels, 
congested waterways, and large numbers of swimmers in the water has the 
potential to result in serious injuries or fatalities. In order to 
protect the safety of all waterway users including event participants 
and spectators, this temporary rule establishes temporary safety zones 
for the time and location of each event.
    This rule prevents vessels from entering into, transiting through, 
mooring or anchoring within areas specifically designated as regulated 
areas during the periods of enforcement unless authorized by the COTP, 
or the designated representative.

Discussion of Rule

    This temporary rule creates safety zones for eight swimming events 
in the COTP Boston Zone. These events are listed below in the text of 
the regulation.
    Because large numbers of spectator vessels are expected to 
congregate around the location of these events, the regulated areas are 
needed to protect both spectators and participants from the safety 
hazards created by swimming events including marine casualties and the 
risk of boat collisions with swimmers in the water that may cause death 
or serious bodily harm. During the enforcement period of the regulated 
areas, persons and vessels are prohibited from entering into, 
transiting through, anchoring or mooring within the zone unless 
specifically authorized by the COTP or the designated representatives. 
The Coast Guard may be assisted by other federal, state and local 
agencies in the enforcement of these regulated areas.
    The Coast Guard determined that these regulated areas will not have 
a significant impact on vessel traffic due to their temporary nature 
and limited size and the fact that vessels are allowed to transit the 
navigable waters outside of the regulated areas. Additionally, The 
Coast Guard has ordered safety zones or special local regulations for 
past events and has not received public comments or concerns regarding 
the impact to waterway traffic.
    Advanced public notifications will also be made to the local 
maritime community by the Local Notice to Mariners as well as Broadcast 
Notice to Mariners.

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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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 regulated areas will 
be of limited duration, they cover only a small portion of the 
navigable waterways, and the events are designed to avoid, to the 
extent possible, deep draft, fishing, and recreational boating traffic 
routes. In addition, vessels requiring entry into the area of the 
regulated areas may be authorized to do so by the Captain of the Port.

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

[[Page 42050]]

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 regulated area during the 
enforcement periods stated for each event in the List of Subjects.
    The temporary safety zones will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: The regulated areas will be 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 areas designated as regulated 
areas. Additionally, before the effective period, the Coast Guard will 
issue notice of the time and location of each regulated area through a 
Local Notice to Mariners and Broadcast Notice to Mariners.

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 (adjusted for 
inflation) 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 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 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 
temporary safety zones. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

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

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

[[Page 42051]]

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. Chapters 701, 3306, 
3703; 33 CFR 1.05-1 and 160.5; Pub. L. 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0533 to read as follows:


Sec.  165.T01-0533  Safety Zones; Swimming Events in Captain of the 
Port Boston Zone.

    (a) Regulations. The general regulations contained in 33 CFR 165.23 
as well as the following regulations apply to the swimming events 
listed in TABLE 1 of T01-0533. These regulations will be enforced for 
the duration of each event. Notifications of exact dates and times of 
the enforcement period will be made to the local maritime community 
through the Local Notice to Mariners and Broadcast Notice to Mariners. 
First Coast Guard District Local Notice to Mariners can be found at 
http://www.navcen.uscg.gov/.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative. Any Coast Guard commissioned, 
warrant or petty officer of the U.S. Coast Guard who has been 
designated by the Captain of the Port (COTP), Sector Boston, to act on 
his or her behalf. The designated representative may be on an official 
patrol vessel or may be on shore and will communicate with vessels via 
VHF-FM radio or loudhailer. In addition, members of the Coast Guard 
Auxiliary may be present to inform vessel operators of this regulation.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Vessel operators desiring to enter or operate within the 
regulated areas should contact the COTP or the designated 
representative via VHF channel 16 to obtain permission to do so.
    (d) Spectators or other vessels shall not anchor, block, loiter, or 
impede the transit of event participants or official patrol vessels in 
the regulated areas during the effective dates and times, or dates and 
times as modified through the Local Notice to Mariners, unless 
authorized by COTP or the designated representative.
    (e) Upon being hailed by a U.S. Coast Guard vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed. Failure to 
comply with a lawful direction may result in expulsion from the area, 
citation for failure to comply, or both.
    (f) The COTP or the designated representative may delay or 
terminate any marine event in this subpart at any time it is deemed 
necessary to ensure the safety of life or property.
    (g) The regulated area for all swimming events listed in TABLE 1 of 
T01-0533 is that area of navigable waters within the area described in 
the table as LOCATION.

                           Table 1 of T01-0533
------------------------------------------------------------------------
 
------------------------------------------------------------------------
6                                                      June
------------------------------------------------------------------------
6.1 Cohasset Triathlon.................   Date: June 26, 2011.
                                          Time: 8:30 a.m. to 10
                                          a.m.
                                          Location: All waters
                                          in the vicinity of Cohasset
                                          Harbor around Sandy Beach,
                                          within the following points
                                          (NAD 83):
                                            42[deg]15.6' N,
                                             070[deg]48.1' W.
                                            42[deg]15.5' N,
                                             070[deg]48.1' W.
                                            42[deg]15.4' N,
                                             070[deg]47.9' W.
                                            42[deg]15.4' N,
                                             070[deg]47.8' W.
------------------------------------------------------------------------
7                                                      July
------------------------------------------------------------------------
7.1 Swim Across America Boston.........   Date: July 15, 2011.
                                          Time: 7 a.m. to 3 p.m.
                                          Location: All waters
                                          of Boston Harbor between Rowes
                                          Warf and Little Brewster
                                          Island within the following
                                          points (NAD 83):
                                            42[deg]21.4' N,
                                             071[deg]03.0' W.
                                            42[deg]21.5' N,
                                             071[deg]02.9' W.
                                            42[deg]19.8' N,
                                             070[deg]53.6' W.
                                            42[deg]19.6' N,
                                             070[deg]53.4' W
------------------------------------------------------------------------
7.2 Swim Across America Nantasket Beach   Date: July 16, 2011.
                                          Time: 9 a.m. to 11
                                          a.m.
                                          Location: All waters
                                          of Massachusetts Bay near
                                          Nantasket Beach within the
                                          following points (NAD 83):
                                            42[deg]16.7' N,
                                             070[deg]51.9' W.
                                            42[deg]16.9' N,
                                             070[deg]51.3' W.
                                            42[deg]16.3' N,
                                             070[deg]50.5' W.
                                            42[deg]16.1' N,
                                             070[deg]51.0' W.
------------------------------------------------------------------------
8                                                     August
------------------------------------------------------------------------
8.1 Sharkfest Swim.....................   Date: August 8, 2011.
                                          Time: 10 a.m. to 12
                                          p.m.
                                          Location: All waters
                                          of Old Harbor from near
                                          Columbia Point to Carson Beach
                                          within the following points
                                          (NAD 83):
                                            42[deg]19.1' N,
                                             071[deg]02.2' W.
                                            42[deg]19.2' N,
                                             071[deg]01.9' W.
                                            42[deg]19.7' N,
                                             071[deg]02.8' W.

[[Page 42052]]

 
                                            42[deg]19.4' N,
                                             071[deg]02.9' W.
------------------------------------------------------------------------
8.2 Celebrate the Clean Harbor Swim....   Date: August 13, 2011.
                                          Rain Date: following
                                          day.
                                          Time: 9 a.m. to 12
                                          p.m.
                                          Location: All waters
                                          of Gloucester Harbor within
                                          the following points (NAD 83):
                                            42[deg]35.3' N,
                                             070[deg]39.8' W.
                                            42[deg]35.9' N,
                                             070[deg]39.2' W.
                                            42[deg]35.9' N,
                                             070[deg]39.8' W.
                                            42[deg]35.3' N,
                                             070[deg]40.2' W.
------------------------------------------------------------------------
8.3 Boston Light Swim..................   Date: August 13, 2011.
                                          Time: 6 a.m. to 12
                                          p.m.
                                          Location: All waters
                                          of Boston Harbor between the L
                                          Street Bath House and Little
                                          Brewster Island within the
                                          following points (NAD 83):
                                            42[deg]19.7' N,
                                             071[deg]02.2' W.
                                            42[deg]19.9' N,
                                             071[deg]10.7' W
                                            42[deg]19.8' N,
                                             070[deg]53.6' W.
                                            42[deg]19.6' N,
                                             070[deg]53.4' W.
------------------------------------------------------------------------
9                                                   September
------------------------------------------------------------------------
9.1 Mayflower Triathlon................   Date: September 3,
                                          2011.
                                          Time: 7:30 a.m. to
                                          8:30 a.m.
                                          Location: All waters
                                          of Plymouth Inner Harbor
                                          within the following points
                                          (NAD 83):
                                            41[deg]58.3' N,
                                             070[deg]40.6' W
                                            41[deg]58.7' N,
                                             070[deg]39.1' W.
                                            41[deg]56.8' N,
                                             070[deg]37.8' W.
                                            41[deg]57.1' N,
                                             070[deg]39.2' W.
------------------------------------------------------------------------
9.2 Duxbury Beach Triathlon............   Date: September 24,
                                          2011.
                                          Time: 9 a.m. to 10
                                          a.m.
                                          Location: All waters
                                          of Duxbury Bay on the south
                                          side of the Powder Point
                                          Bridge within the following
                                          points (NAD 83):
                                            42[deg]02.8' N,
                                             070[deg]39.1' W.
                                            42[deg]03.0' N,
                                             070[deg]38.7' W.
                                            42[deg]02.8' N,
                                             070[deg]38.6' W.
                                            42[deg]02.7' N,
                                             070[deg]39.0' W.
------------------------------------------------------------------------


    Dated: July 7, 2011.
J.N. Healey,
Captain, U.S. Coast Guard, Captain of the Port Sector Boston.
[FR Doc. 2011-17983 Filed 7-15-11; 8:45 am]
BILLING CODE 9110-04-P