[Federal Register Volume 77, Number 60 (Wednesday, March 28, 2012)]
[Proposed Rules]
[Pages 18739-18742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7395]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0163]
RIN 1625-AA00


Safety Zone; Bay Swim V, Presque Isle Bay, Erie, PA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
on the waters of Presque Island Bay, Erie, PA. This proposed safety 
zone is intended to restrict vessels from a portion of the Presque 
Island Bay during the Bay Swim V swimming event. The safety zone 
established by this proposed safety zone is necessary to protect 
participants, spectators, and vessels from the hazards associated with 
a large scale swimming event.

DATES: Comments and related materials must be received by the Coast 
Guard on or before April 27, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2012-0163 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 email LT Christopher Mercurio, Chief of Waterway 
Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, 
email <a href="/cdn-cgi/l/email-protection#ca99afa9bea5b888bfacacaba6a587abb8a3a4af99abacafbeb38abfb9a9ade4a7a3a6"><span class="__cf_email__" data-cfemail="1645737562796454637070777a795b77647f787345777073626f5663657571387b7f7a">[email protected]</span></a>. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

[[Page 18740]]


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-2012-0163), 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 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 email 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-2012-0163'' 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-2012-0163'' 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

    Between 9 a.m. and 11 a.m. on June 30, 2012, a large scale swimming 
event will take place on Presque Isle Bay near Erie, PA. The Captain of 
the Port Buffalo has determined that this large scale swimming event 
across a navigable waterway will pose significant risks to participants 
and the boating public.

Discussion of Proposed Rule

    With the aforementioned risks in mind, the Captain of the Port 
Buffalo has determined that this proposed temporary safety zone is 
necessary to ensure the safety of participants and the boating public 
during the Bay Swim V event.
    The proposed safety zone will be effective and enforced from 8:30 
a.m. until 11:30 a.m. on June 30, 2012.
    The proposed safety zone will encompass all waters of Presque Isle 
Bay, Erie, PA starting from Vista 3 in Presque Isle State Park at 
position 42[deg]07'29.30'' N, 80[deg]08'48.82'' W and extend in a 
straight line 1,000 feet wide to the Erie Yacht Club at position 
42[deg]07'21.74'' N, 80[deg]07'58.30'' W (DATUM: NAD 83).
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port Buffalo or the designated on scene 
patrol personnel. Entry into, transiting, or anchoring within the 
proposed safety zone is prohibited unless authorized by the Captain of 
the Port Buffalo or his designated on-scene representative. The Captain 
of the Port Buffalo or his designated on-scene representative may be 
contacted via VHF Channel 16.

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

    Executive Orders 12866, Regulatory Planning and Review, and 13563, 
Improving Regulation and Regulatory Review, direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. 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 zone created by this 
proposed rule will be relatively small and enforced for relatively 
short time. Also, the safety zone is designed to minimize its impact on 
navigable waters. Furthermore, the safety zone has been designed to 
allow vessels to transit around it. Thus, restrictions on vessel 
movement within that particular area are expected to be minimal. Under 
certain conditions, moreover, vessels may still transit through the 
safety zone

[[Page 18741]]

when permitted by the Captain of the Port Buffalo.

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 may affect the following entities, some of which 
might be small entities: The owners of operators of vessels intending 
to transit or anchor in a portion of Presque Isle Bay near Erie, PA 
between 8:30 a.m. to 11:30 p.m. on June 30, 2012.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities because this proposed rule would 
be in effect for only approximately three hours. Also, in the event 
that this temporary safety zone affects shipping, commercial vessels 
may request permission from the Captain of the Port Buffalo to transit 
through the safety zone. Additionally, the Coast Guard will give 
advanced notice to the public via a local Broadcast Notice to Mariners 
that the regulation is in effect. Moreover, the Captain of the Port 
Buffalo will suspend enforcement of the safety zone if the event for 
which the zone is established ends earlier than the expected time.
    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 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 LT Christopher 
Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector 
Buffalo; telephone 716-843-9343, email 
<a href="/cdn-cgi/l/email-protection#64370107100b162611020205080b2905160d0a0137050201101d24111707034a090d08"><span class="__cf_email__" data-cfemail="0d5e686e79627f4f786b6b6c6162406c7f6463685e6c6b6879744d787e6e6a23606461">[email protected]</span></a>. 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 
proposed rule elsewhere in this preamble.

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.

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 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.

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.

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

[[Page 18742]]

that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This proposed rule is categorically excluded, under figure 
2-1, paragraph (34) (g), of the Instruction because it involves the 
establishment of a safety zone.
    A preliminary environmental analysis checklist and categorical 
exclusion determination are 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.

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.T09-0163 to read as follows:


Sec.  165.T09-0163  Safety Zone; Bay Swim V, Presque Isle Bay, Erie, 
PA.

    (a) Location. The safety zone will encompass all waters of Presque 
Isle Bay, Erie, PA starting from Vista 3 in Presque Isle State Park at 
position 42[deg]07'29.30'' N, 80[deg]08'48.82'' W and extend in a 
straight line 1,000 feet wide to the Erie Yacht Club at position 
42[deg]07'21.74'' N, 80[deg]07'58.30'' W. (NAD 83)
    (b) Effective and Enforcement Period. This regulation is effective 
and will be enforced from 8:30 a.m. to 11:30 a.m. on June 30, 2012.
    (c) Regulations.
    (1) In accordance with the general regulations in section 165.23 of 
this part, entry into, transiting, or anchoring within this safety zone 
is prohibited unless authorized by the Captain of the Port Buffalo or 
his designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port Buffalo or his designated on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port 
Buffalo is any Coast Guard commissioned, warrant or petty officer who 
has been designated by the Captain of the Port Buffalo to act on his 
behalf. The on-scene representative of the Captain of the Port Buffalo 
is any Coast Guard commissioned, warrant or petty officer who has been 
designated by the Captain of the Port Buffalo to act on his behalf.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port Buffalo or his on-scene 
representative to obtain permission to do so. The Captain of the Port 
Buffalo or his on-scene representative may be contacted via VHF Channel 
16. Vessel operators given permission to enter or operate in the safety 
zone must comply with all directions given to them by the Captain of 
the Port Buffalo, or his on-scene representative.

    Dated: March 6, 2012.
S.M. Wischmann,
Captain, U. S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2012-7395 Filed 3-27-12; 8:45 am]
BILLING CODE 9110-04-P


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