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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2009-0720] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to establish a temporary safety zone for the Ocean City Beachfront Air Show, an aerial demonstration to be held over the waters of the Atlantic Ocean adjacent to Ocean City, New Jersey. This Safety Zone is necessary to provide for the safety of life on navigable waters during the event. This proposed action would temporarily restrict vessel traffic in portions of the Atlantic Ocean adjacent to Ocean City, New Jersey during the aerial demonstration. 

# DATES:

Comments and related material must be received by the Coast Guard on or before September 21, 2009 Requests for public meetings must be received by the Coast Guard on or before August 28, 2009. 

# ADDRESSES:

You may submit comments identified by docket number USCG-2009-0720 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.                     

                        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 Lieutenant Rebecca Walthour, Chief of Waterways Management Branch, Coast Guard Sector Delaware Bay, at 215-271-4889, e-mail                         *Rebecca.A.Walthour@uscg.mil.*                         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-2009-0720), 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                     *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 “Notices” and insert “USCG-2009-0720” 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-2009-0720 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                           ( print page 42221)                        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 on or before August 18, 2009, 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 19-20, 2009, the Ocean City Business and Neighborhood Development INC will sponsor the Ocean City Beachfront Air Show. The event will consist of high performance jet aircraft performing low altitude aerial maneuvers over the waters of the Atlantic Ocean adjacent to Ocean City, New Jersey. A fleet of spectator vessels is expected to gather nearby to view the aerial demonstration. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of spectators and transiting vessels. 

## Discussion of Proposed Rule 

The Coast Guard proposes to establish a temporary safety zone on the North Atlantic Ocean, immediately adjacent to the shoreline at Ocean City, New Jersey. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated areas during the enforcement period. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. This regulation will be enforced to prevent personal injury to mariners and damage to vessel traffic during the event. 

The temporary safety zone includes all waters offshore from Ocean City, New Jersey, bounded within the following area: Beginning at latitude 39°16′28″ N, longitude 074°33′38″ W, thence southeasterly to latitude 39°16′20″ N, longitude 074°33′30″ W, thence southwesterly to latitude 39°15′38″ N, longitude 074°34′41″ W, thence northwesterly to latitude 39°15′47″ N, longitude 074°34′51″ W, thence returning northeasterly to latitude 39°16′28″ N, longitude 074°33′38″ W. All coordinates listed for the following safety zones reference Datum NAD 1983. 

*This temporary safety zone will be enforced from*                     1 p.m. to 3 p.m. on September 19, 2009, and from 12 p.m. (noon) to 4 p.m. on September 20, 2009.                 

## 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 expect the economic impact of this proposed rule to be so minimal that a full Regulatory Assessment is unnecessary. Although this regulation restricts vessel traffic from transiting a small segment of coastal waters near Ocean City, New Jersey, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the advance notifications that will be made to the maritime community via marine information broadcasts and area newspapers 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 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 coastal waters in the vicinity of Ocean City, New Jersey during the event. 

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 1 p.m. to 3 p.m. on September 19, 2009 and from 12 a.m. (noon) to 4 p.m. on September 20, 2009. Traffic will be allowed to pass through the zone with the permission of the Coast Guard patrol commander. Before the enforcement period, we will issue maritime advisories so mariners can 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 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 rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Rebecca Walthour, Chief of Waterways Management Branch, Coast Guard Sector Delaware Bay, at 215-271-4889, or e-mail                     *Rebecca.A.Walthour@uscg.mil.*                     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                           ( print page 42222)                        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. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under                     **ADDRESSES**                    . This proposed rule involves creating a temporary safety zone on the waters of the Atlantic Ocean offshore from Ocean City, New Jersey, which will restrict vessel movement due to a scheduled air show. 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, 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 § 165.T05-0720, to read as follows:

§ 165.T05-0720 

                            (a)                             *Location.*                             A temporary safety zone is created on the coastal waters of the North Atlantic Ocean, immediately adjacent to the shoreline at Ocean City, NJ, bounded within the following area: beginning at latitude 39°16′28″ N, longitude 074°33′38″ W, thence southeasterly to latitude 39°16′20″ N, longitude 074°33′30″ W, thence southwesterly to latitude 39°15′38″ N, longitude 074°34′41″ W, thence northwesterly to latitude 39°15′47″ N, longitude 074°34′51″ W, thence returning northeasterly to latitude 39°16′28″ N, longitude 074°33′38″ W.                        

                            (b)                             *Regulations.*                             (1) Under the general regulations governing safety zones in § 165.23, no person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.                        

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at 215-271-4807.

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

                            (c)                             *Definition.*                             As used in this section,                             *designated representative*                             means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf to assist in enforcing this section.                        

                            (d)                             *Effective period.*                             This section will be enforced from 1 p.m. to 3 p.m. on September 19, 2009, and from 12 p.m. (noon) to 4 p.m. on September 20, 2009.                        

Dated: August 7, 2009.

Meredith L. Austin,

Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.

[FR Doc. E9-20095 Filed 8-20-09; 8:45 am]

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