Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG–2010–0092]
          - RIN 1625–AA08

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to establish a temporary regulated navigation area on the navigable waters of the lower Hudson River and Upper New York Bay in the vicinity of Liberty State Park, New Jersey and Ellis Island, New Jersey and New York for the Red Bull Air Race World Championship, an event scheduled to be held over water. This regulation is necessary to protect participants and spectators from the hazards associated with air races. This proposed action is intended to restrict vessel traffic in a portion of the lower Hudson River and Upper New York Bay during the event.

# DATES:

Comments and related material must be received by the Coast Guard on or before June 9, 2010.

Requests for public meetings must be received by the Coast Guard on or before June 9, 2010.

# ADDRESSES:

You may submit comments identified by docket number USCG–2010–0092 using any one of the following methods:
      - Federal eRulemaking Portal: http://www.regulations.gov.
      -  Fax:                          202–493–2251.                    
      -  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.                    
      -  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 LTJG Eunice James, Coast Guard Sector New York Waterways Management Division, Marine Events Branch; telephone 718–354–4163, e-mail                         *Eunice.A.James@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.                    

      ( print page 25795)    

# 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–2010–0092), 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 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 “Proposed Rule” and insert “USCG–2010–0092” 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–2010–0092” 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**                    .                

## Basis and Purpose

Red Bull Air Race GmbH is sponsoring the Red Bull Air Race World Championship event on and over the waters of the lower Hudson River and Upper New Bay, in the vicinity of Liberty State Park, NJ and Ellis Island, NJ and NY on June 17, 2010 through June 20, 2010.

The event will feature lightweight racing planes, performing low-flying, high speed precision maneuvers while navigating a low-level aerial track made up of air-filled pylons. The objective is for pilots to complete the course in the fastest time while safely navigating specially designed inflatable pylons known as “Air Gates” that will be strategically placed in the water to form the race course. The event organizer will commence setting up the race course and placing the Air Gates in position, on June 14 through June 16, 2010.

It is anticipated that spectator vessels will gather nearby to view the event. To provide for the safety of participants, support vessels, spectators and transiting vessels, the Coast Guard Captain of the Port New York will temporarily restrict vessel traffic during the event.

## Discussion of Proposed Rule

The Coast Guard proposes to establish a temporary regulated navigation area on specified waters of the Hudson River and Upper New York Bay. The regulated area will encompass all waters of Upper New York Bay and the Hudson River, bound by the following points (NAD 83):

40°42′31.8″ N, 074°02′04.0″ W; thence to 40°42′36.3″ N, 074°01′47.9″ W; thence to 40°42′34.1″ N, 074°01′28.6″ W; thence to 40°42′07.5″ N, 074°01′26.4″ W; thence to 40°41′17.5″ N, 074°02′07.3″ W; thence to 40°41′46.2″ N, 074°03′04.0″ W; and bound by the shoreline in the vicinity of Liberty State Park, NJ. The Captain of the Port New York will establish spectator vessel viewing areas within the boundaries of the regulated area. Access to the spectator vessel viewing areas will be restricted to vessels based on vessel size.

This proposed rule is intended to ensure the safety of the public and vessels during the event and during scheduled activities related to the event associated with the Red Bull Air Race Championship event.

The regulations will be in effect daily from 8 a.m. to 6 p.m., June 17th through June 20th, 2010. On June 17–20, 2010, the restrictions will be enforced as needed and therefore will be intermittent. On June 17–18, 2010, the restrictions on the regulated area closure will total no more than 5 hours between the hours of 8 a.m. to 6 p.m. On June 19–20, 2010, the regulated area closure will total no more than 6 hours between the hours of 8 a.m. to 6 p.m. The effect will be to restrict general navigation in the regulated area during the event and during scheduled activities related to the event. Except for persons or vessels authorized by the Coast Guard Captain of the Port New York or the designated representative, no person or vessel may enter or remain in the regulated area during the enforcement period. The Captain of the Port New York will notify the public of specific enforcement times by Marine Radio Safety Broadcast.

## 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                           ( print page 25796)                        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.                

Although this proposed rule prevents vessels from transiting a portion of the Hudson River and Upper New York Bay during the event, the effect of this regulation will not be significant due to the limited duration the regulated area will be in effect and enforced. In addition, advance notifications will be made to the maritime community via information broadcasts, and local notice to mariners.

## 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: The owners and operators of vessels intending to transit or anchor in a portion of the lower Hudson River and Upper New York Bay in the vicinity of Liberty State Park, NJ between 10 a.m. June 17, 2010 to 6 p.m. June 20, 2010.

This proposed regulated navigation area will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated area would be activated for four days, and subject to enforcement, for approximately 6 hours each day when participating vessels and aircrafts are in the area. Vessel traffic can safely transit all waters outside the regulated area during the event. Before the effective period, we will issue maritime advisories widely available to users of the waterway.

                    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 LTJG Eunice James, office: (718) 354–4163, email:                     *Eunice.A.James@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 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 rule elsewhere in this preamble.

## Taking of Private Property

This proposed rule would 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 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.                          ( print page 25797)    

## 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 that 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 the establishment of regulated areas, including two spectator vessel viewing areas for a marine event which a permit application was made.                

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 Record keeping requirements
      - Security measures
      - Waterways

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

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; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 6.05; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.2. Add § 165.T01–0092 to read as follows:

§ 165.T01–0092 

                        (a)                         *Regulated Navigation Area.*                         The regulated area includes all waters of Upper New York Bay and the lower Hudson River bound by the following points (NAD 83): 40°42′31.8″ N, 074°02′04.0″ W; thence to 40°42′36.3″ N, 74°01′47.9″ W; thence to 40°42′34.1″ N, 074°01′28.6″ W; thence to 40°42′07.5″ N, 074°01′26.4″ W; thence to 40°41′17.5″ N, 074°02′07.3″ W; thence to 40°41′46.2″ N, 074°03′04.0″ W; thence along the shoreline to the point of origin. Within this area, the Captain of the Port New York may establish—                    

                        (b)                         *Definition.*                         As used in this section, “designated representative” means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Captain of the Port Sector New York.                    

*Regulations.*                         (1) No person or vessel may enter, transit, or remain in the regulated area, unless participating in the event or unless authorized by the Coast Guard Captain of the Port New York or designated representative.                    

(2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port New York or the designated on-scene representative. Upon being hailed by a Coast Guard or other law enforcement vessel by siren, radio, flashing light, or other means the operator of a vessel shall proceed as directed.

*(c) Enforcement period.*                         The regulated area will be enforced daily from 8 a.m. to 6 p.m. on June 17 through June 20, 2010.                    

Dated: May 4, 2010.

J.A. Servidio,

Captain, U.S. Coast Guard, Acting, Commander, First Coast Guard District.

[FR Doc. 2010–10946 Filed 5–7–10; 8:45 am]

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