[Federal Register Volume 77, Number 159 (Thursday, August 16, 2012)]
[Proposed Rules]
[Pages 49401-49404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20092]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0730]
RIN 1625-AA00


Safety Zones; Revolution 3 Triathlon, Lake Erie, Sandusky Bay, 
Cedar Point, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishing two permanent safety 
zones on Lake Erie near Sandusky, OH. This action is necessary to 
provide for the safety of life and property on navigable waters and is 
intended to restrict vessel traffic during the swim portion of the 
Revolution 3 Triathlon, Lake Erie, Sandusky Bay, OH.

DATES: Comments and related materials must be received by the Coast 
Guard on or before September 17, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2012-0730 using any one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
    Fax: 202-493-2251.
    Mail or Delivery: 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. Deliveries are 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments. To avoid duplication, please use only one of these 
four methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email LTJG Benjamin Nessia, Response Department, Marine 
Safety Unit Toledo, Coast Guard; telephone (419)418-6040, email 
[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: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Public Participation and Information

    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.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, 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 (via 
http://www.regulations.gov) or by fax, mail or hand delivery, but 
please use only one of these means. If you submit a comment online via 
www.regulations.gov, it will be considered received by the Coast Guard 
when the comment is successfully transmitted. A comment submitted via 
fax, hand delivery, or mail, will be considered as having been received 
by the Coast Guard when the comment is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an email address, or a telephone number in the body of 
your document so that we can contact you if

[[Page 49402]]

we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    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.

2. 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, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``OPEN DOCKET FOLDER'' on the line associated with this 
rulemaking. 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.

3. 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).

4. 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.

B. Basis and Purpose

    Each year, the Revolution 3 Triathlon occurs at Cedar Point near 
Sandusky, OH. This event occurs each year for two consecutive days 
during the first or second week of September. During the first leg of 
the event, participants enter the water and swim along a predetermined 
course. While the primary course is on the eastern side of Cedar Point, 
an alternate location is on the western side of Cedar Point, in the 
vicinity of the Cedar Point Marina. The likely combination of large 
numbers of inexperienced recreational boaters, possibly varying lake 
conditions and large number of swimmers in the water could easily 
result in serious injuries or fatalities. The Captain of the Port 
Detroit proposes to establish this safety zone to protect against such 
injuries and fatalities.
    In the past, the Coast Guard has established temporary safety zones 
in coordination for this event. For example, temporary safety zones 
were established in rules published on September 13, 2010 (75 FR 
55477), and September 8, 2011 (76 FR 55564). Because this event will 
recur annually, the Captain of the Port Detroit is proposing to 
establish a permanent safety zone and thus, alleviate the need to 
publish TFRs in the future.

C. Discussion of Proposed Rule

    As suggested above, this proposed regulation is intended to ensure 
safety of the public and vessels during the Revolution 3 triathlon. 
This proposed rule will become effective 30 days after the final rule 
is published in the Federal Register. However, the safety zones will 
only be enforced annually for two consecutive days during the first or 
second week of September from 6:50 a.m. until 10 a.m., with exact dates 
to be determined annually.
    The proposed safety zones for the Revolution 3 Triathlon, Lake 
Erie, Sandusky Bay, Cedar Point, OH, will encompass all waters of Lake 
Erie, Sandusky Bay, Cedar Point, OH within the swim courses located at 
position 41-29'-00.04''N 082-40'-48.16''W to 41-29'-19.28''N 082-40'-
38.97''W to 41-29'-02.51''N 082-40'-20.82''W to 41-28'-45.52''N 082-
40'-35.75''W then following the shoreline to the point of origin. These 
coordinates are North American Datum of 1983 (NAD 83). In the event 
that weather requires changing locations an alternate race course site 
will encompass all waters of Lake Erie, Sandusky Bay, Cedar Point, OH 
extending outward 100 yards on either side of a line running between 
41-28'-38.59''N 082-41'-10.51''W and 41-28'-17.25''N 082-40'-54.09''W 
running adjacent to the Cedar Point Marina. These coordinates are North 
American Datum of 1983 (NAD 83).
    The Captain of the Port Detroit will use all appropriate means to 
notify the public when the safety zones in this proposal will be 
enforced. Consistent with 33 CFR 165.7(a), such means of may include, 
among other things, publication in the Federal Register, Broadcast 
Notice to Mariners, Local Notice to Mariners, or, upon request, by 
facsimile (fax). Also, the Captain of the Port will issue a Broadcast 
Notice to Mariners notifying the public if enforcement these safety 
zones in this section are cancelled prematurely.
    Entry into, transiting, or anchoring within the proposed safety 
zones during the period of enforcement is prohibited unless authorized 
by the Captain of the Port Detroit, or his designated representative. 
The Captain of the Port or his designated representative may be 
contacted via VHF Channel 16.

D. 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.

1. 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, 
as supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. It is not 
``significant'' under the regulatory policies and procedures of the 
Department of Homeland Security (DHS). 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 zones established by this proposed rule will be relatively 
small and enforced for relatively short time. Also, each safety zone is 
designed to minimize its impact on navigable waters. Furthermore, each 
safety zone has been designed to allow vessels to transit unrestricted 
to portions of the waterways not affected by the safety zones. Thus, 
restrictions on vessel movements within any particular area are 
expected to be minimal. Under certain conditions, moreover, vessels may 
still transit through each safety zone when permitted by the Captain of 
the Port. On the whole, the Coast Guard

[[Page 49403]]

expects insignificant adverse impact to mariners from the activation of 
these safety zones.

2. Impact on 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.
    This proposed rule would affect the following entities, some of 
which might be small entities: The owners and operators of vessels 
intending to transit or anchor in the above portions of Lake Erie 
during the period that either of the proposed safety zones is being 
enforced.
    These proposed safety zones will not have a significant economic 
impact on a substantial number of small entities for all of the reasons 
discussed in the above Regulatory Planning and Review section. If you 
think that your business, organization, or governmental jurisdiction 
qualifies as a small entity and that this proposed 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.

3. 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 process. 
If this proposed rule would affect your small business, organization, 
or governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LTJG Benjamin 
Nessia, Response Department, Marine Safety Unit Toledo, Coast Guard; 
telephone (419) 418-6040, email [email protected]. 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.

4. 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).

5. 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.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the ``FOR FURTHER 
INFORMATION CONTACT'' section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 
proposed rule elsewhere in this preamble.

8. Taking of Private Property

    This proposed rule would 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.

9. 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.

10. Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed 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.

11. Indian Tribal Governments

    This proposed 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.

12. 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.

13. Technical Standards

    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

14. 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 the establishment of safety zones and thus, is categorically 
excluded under paragraph (34)(g) of the Instruction. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

[[Page 49404]]

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. 1231; 46 U.S.C. Chapters 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.

    2. Add Sec.  165.917 to read as follows:


Sec.  165.917  Safety Zones; Annual Swim Events in the Captain of the 
Port Detroit Zone.

    (a) Location. The following locations are designated as safety 
zones: All waters of Lake Erie within positions 41-29'-00.04'' N 082-
40'-48.16'' W to 41-29'-19.28'' N 082-40'-38.97'' W to 41-29'-02.51'' N 
082-40''-20.82'' W to 41-28''-45.52'' N 082-40'-35.75'' W then 
following the shoreline to the point of origin. In the event that 
weather requires changing locations an alternate race course site will 
encompass all waters of Lake Erie, Sandusky Bay, Cedar Point, OH 
extending outward 100 yards on either side of a line running between 
41-28'-38.59'' N 082-41'-10.51'' W and 41-28'-17.25'' N 082-40'-54.09'' 
W running adjacent to the Cedar Point Marina. These coordinates are 
North American Datum of 1983 (NAD 83).
    (b) Enforcement period. These safety zones will be enforced two 
consecutive mornings during the first or second week in September. 
Exact dates and times will be determined annually and published 
annually in the Federal Register via a Notice of Enforcement.
    (c) Definitions. The following definitions apply to this section:
    (1) ``On-scene Representative'' means any Coast Guard Commissioned, 
warrant, or petty officer designated by the Captain of the Port Detroit 
to monitor a safety zone, permit entry into the zone, give legally 
enforceable orders to persons or vessels within the zones, and take 
other actions authorized by the Captain of the Port.
    (2) ``Public vessel'' means vessels owned, chartered, or operated 
by the United States, or by a State or political subdivision thereof.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transiting, or anchoring within 
this safety zone is prohibited unless authorized by the Captain of the 
Port Detroit, or his designated representative.
    (2) These safety zones are closed to all vessel traffic, excepted 
as may be permitted by the Captain of the Port Detroit or his 
designated representative. All persons and vessels must comply with the 
instructions of the Coast Guard Captain of the Port or his designated 
representative. Upon being hailed by the U.S. Coast Guard by siren, 
radio, flashing light or other means, the operator of a vessel shall 
proceed as directed.
    (3) All vessels must obtain permission from the Captain of the Port 
or his designated representative to enter, move within, or exit the 
safety zone established in this section when this safety zone is 
enforced. Vessels and persons granted permission to enter the safety 
zone must obey all lawful orders or directions of the Captain of the 
Port or a designated representative. While within a safety zone, all 
vessels must operate at the minimum speed necessary to maintain a safe 
course.
    (e) Exemption. Public vessels, as defined in paragraph (b) of this 
section, are exempt from the requirements in this section.
    (f) Waiver. For any vessel, the Captain of the Port Detroit or his 
designated representative may waive any of the requirements of this 
section, upon finding that operational conditions or other 
circumstances are such that application of this section is unnecessary 
or impractical for the purposes of public or environmental safety.
    (g) Notification. The Captain of the Port Detroit will notify the 
public that the safety zones in this section are or will be enforced by 
all appropriate means to the affected segments of the public including 
publication in the Federal Register as practicable, in accordance with 
33 CFR 165.7(a). Such means of notification may also include, but are 
not limited to Broadcast Notice to Mariners or Local Notice to 
Mariners. The Captain of the Port will issue a Broadcast Notice to 
Mariners notifying the public when enforcement of the safety zone is 
cancelled.

    Dated: August 6, 2012.
J. E. Ogden,
Captain, U.S. Coast Guard, Captain of the Port Detroit.
[FR Doc. 2012-20092 Filed 8-15-12; 8:45 am]
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