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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 100
          - [Docket No. USCG-2008-1268]
          - RIN 1625-AA08

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing a special local regulation during the Volvo Ocean Race 2009 In-Port Race to be held on Broad Sound, off Nahant, Massachusetts, on May 9, 2009. This special local regulation is necessary to provide for the safety of life on navigable waters during the event. This proposed action is intended to restrict vessel traffic before, during and after the race.

# DATES:

This rule is effective from 10:30 a.m. through 4 p.m. on May 09, 2009.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-                              ( print page 18291)                            1268 and are available online by going to                         *http://www.regulations.gov,*                         selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2008-1268 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. 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 Chief Eldridge McFadden, Sector Boston, Waterways Management, telephone 617-223-5160, e-mail                         *Eldridge.C.Mcfadden@uscg.mil.*                         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.

Concerns raised by the Stellwagen Banks National Marine Sanctuary, a division of NOAA, prompted the race sponsors to reevaluate certain details of the race, including its course. Certain details, including the course for the race, were eventually changed due to these concerns. The lack of certainty until the recent finalization of all race details delayed the creation of the rulemaking for this event, which made it impracticable to create a Notice of Proposed Rulemaking.

                    For the same reasons, 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.**

## Background and Purpose

The Volvo Ocean Race, formerly the Whitbread Round the World Race, is a yacht race around the world, held every three years. The current race started in Alicante, Spain on October 11, 2008, and has been traveling internationally from port to port. In addition to a timed race between ports, some of the ports host an In-Port Race for points. This special local regulation addresses the In-Port Race which is to take place within the area of responsibility of the Captain of the Port Boston. Broad Sound is an area which is commonly used as a fishing area. To ensure the unimpeded sailing of the races and to prevent damage to equipment and danger to any potential fishermen or sailors in this area, a special local regulation is necessary. On May 9, 2008, the Volvo Ocean Race coordinators intend to hold an In-Port Race on the waters of Broad Sound in Boston Harbor. The event will consist of up to eight sailing yachts on a course within a 1-mile radius circular area. A fleet of spectator vessels are expected to gather near the event site to view the competition. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the race. The event coordinators have been in contact with members of the local communities affected including the harbormasters of Boston, Nahant and Winthrop, Massachusetts as well as local fishermen, to request support and inform them of the plans.

## Discussion of Rule

This ruling proposes to create a Special Local Regulation encompassing a two-mile wide sailing race area and associated spectator area with a center point of 42°23′ N., 70°55′45″ W., within Broad Sound, Nahant, Massachusetts from 10:30 a.m. to 4 p.m. on May 9, 2009. The regulation will be in effect for only five and one half hours, after which time the area will be opened to all vessel traffic. The course of the race itself will be within the two-mile diameter area and will be set up and marked with sailing buoys according to the winds the day of the race. Except for participants and spectator vessels or other vessels as authorized by the Coast Guard Patrol Commander, no person or vessel will be allowed to enter or remain in the regulated area during the enforcement period.

## 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.

This rule is not a significant regulatory action as it is a temporary event which will be in effect only for a short period of time. Although this regulation would prevent traffic from transiting a portion of the Broad Sound during the event, the effect of this regulation would not be significant due to the limited duration that the regulated area would be in effect and the extensive advance notification and outreach the Volvo Ocean Race coordinators have made to the maritime community, as well as via broadcast and local notice to mariners, 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.

This proposed rule would affect the following entities, some of which might be small entities: Fishermen, and the owners or operators of vessels intending to transit, fish or anchor in a portion of Broad Sound, Massachusetts, from 10:30 a.m. to 4 p.m. on May 9, 2009.

This special local regulation would not have a significant economic impact on a substantial number of small entities for the following reasons: This rule would be in effect for only five and a half hours and vessel traffic could pass around the regulated area. Before the effective period, we will issue maritime advisories widely available to users of the sound.

## 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                           ( print page 18292)                        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 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 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 0023.1 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)(h), of the Instruction. This rule involves the creation of a special local regulation for a marine event of limited duration. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

# List of Subjects in 33 CFR Part 100

      - Marine safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Waterways

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

# PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS

1. The authority citation for part 100 continues to read as follows: 

Authority:33 U.S.C. 1233.

2. Add a temporary § 100.35-T01-1268 to read as follows: 

§ 100.35-T01-1268 

                            (a)                             *Regulated area.*                             A zone comprised of a circle two nautical miles in diameter with the center point at position 42°23′00″ N., 070°55′45″ W.                        

                            (b)                             *Special Local Regulation.*                             The regulated area is closed to all transiting traffic except that traffic involved in, supporting or viewing the Volvo Ocean Race.                        

                            (c)                             *Effective dates.*                             This regulation is effective from 10:30 a.m. to 4 p.m. on May 9, 2009.                        

                            (d)                             *Definitions.*                             (1)                             *Patrol vessel*                             means any Coast Guard vessel designated as Patrol Commander.                        

(2) The Coast Guard Patrol Commander is a commissioned, warrant, petty officer of the Coast Guard who has been designated by Commander, Coast Guard Sector Boston. The Patrol Commander is empowered to control movement of vessels in the regulated area and adjoining waters during the hours these regulations are in effect.

                            (3) A succession of sharp, short signals by whistle, siren, or horn from vessels patrolling the area shall serve as                                   ( print page 18293)                                a signal to stop. Vessels or persons signaled shall stop and shall comply with the orders of the patrol vessels. Failure to due so may result in the expulsion from the area, citation for failure to comply, or both.                        

(4) Any spectator vessel may anchor outside the regulated area specified in paragraph (a) of this section, but may not block a navigable channel.

Dated: March 10, 2009.

Gail P. Kulisch,

Captain, U.S. Coast Guard, Captain of the Port Boston.

[FR Doc. E9-9165 Filed 4-21-09; 8:45 am]

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