[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54686-54689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22237]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0860]
RIN 1625-AA00


Safety Zone; Neptune Festival, Atlantic Ocean, Virginia Beach, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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[[Page 54687]]

SUMMARY: The Coast Guard is establishing a 420-foot radius safety zone 
on the Atlantic Ocean in the vicinity of the 14th Street Fishing Pier, 
Virginia Beach, Virginia, in support of the Neptune Festival Fireworks 
event. This action is intended to protect mariners from the hazards 
associated with fireworks displays by restricting vessel traffic 
movement in the vicinity of the event.

DATES: This rule is effective from 9 p.m. until 10 p.m. on September 
27, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-0860 and are available online 
at http://www.regulations.gov. They are also available for inspection 
or copying in two locations: 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; and 
the Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th 
Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Lieutenant Tiffany Duffy, Chief, Waterways 
Management Division, Sector Hampton Roads at (757) 668-5580. 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 because any delay encountered in this 
regulation's effective date by publishing a NPRM would be contrary to 
public interest since immediate action is needed to provide for the 
safety of life and property during the fireworks display. Additionally, 
this temporary safety zone will only be enforced for one hour on 
September 27, 2008 and should have minimal impact on vessel transits 
because vessels may safely transit through the zone when authorized by 
the Captain of the Port or his Representative or they may transit 
around the safety zone. For the same reasons above, 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

    On September 27, 2008, Zambelli International will sponsor a 
fireworks display on the Atlantic Ocean shoreline centered on position 
36[deg]50'36'' N/75[deg]58'12'' W (NAD 1983). Due to the need to 
protect mariners and spectators from the hazards associated with the 
fireworks display, access will be temporarily restricted within 420 
feet of the fireworks launch site.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone in the 
vicinity of Virginia Beach, VA on September 27, 2008. The center of the 
safety zone is 36[deg]50'36'' N/75[deg]58'12'' W (NAD 1983), and such 
safety zone will extend 420 feet in all directions from that point. In 
the interest of public safety, access to the safety zone will be 
restricted from 9 p.m. to 10 p.m. on September 27, 2008. Except for 
participants and vessels authorized by the Coast Guard Captain of the 
Port or his representative, no person or vessel may enter or remain in 
the safety zone.

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. Although this regulation restricts access 
to the safety zone, the effect of this rule will not be significant 
because: (i) The safety zone will be in effect for a limited duration; 
(ii) the zone is of limited size; and (iii) the Coast Guard will make 
notifications via maritime advisories 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 rule may affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
or anchor within the specified safety zone during the enforcement 
period.
    The safety zone will not have a significant economic impact on a 
substantial number of small entities because the zone will only be 
enforced for a limited time and is of limited size. Additionally, 
vessel traffic can pass safely around the zone. Before the effective 
period, maritime advisories will be issued and made widely available to 
waterway users.

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 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).

[[Page 54688]]

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 5100.1 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 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. Under figure 2-1, paragraph (34)(g), of 
the Instruction, an ``Environmental Analysis Check List'' and a 
``Categorical Exclusion Determination'' will be available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
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.


0
2. Add temporary Sec.  165.T05-0860, to read as follows:


Sec.  165.T05-0860  Safety Zone: Neptune Festival Fireworks Event, 
Atlantic Ocean, Virginia Beach, VA.

    (a) Regulated Area. The following area is a safety zone: All 
navigable waters from position 36[deg]50'36'' N/75[deg]58'12'' W (NAD 
1983) and extending out 420 feet from that point in the vicinity of 
14th Street Fishing Pier, Virginia Beach, Virginia.
    (b) Definitions. As used in this section, Captain of the Port 
Representative means any U.S. Coast Guard commissioned, warrant or 
petty officer who has been authorized by the Captain of the Port 
Hampton Roads, Virginia to act on his behalf.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port Hampton Roads or his designated 
representatives.
    (2) The operator of any vessel in the immediate vicinity of this 
safety zone shall:
    (i) Stop the vessel immediately upon being directed to do so by any 
commissioned, warrant or petty officer on shore or on board a vessel 
that is displaying a U.S. Coast Guard Ensign.
    (ii) Proceed as directed by any commissioned, warrant or petty 
officer on shore or on board a vessel that is displaying a U.S. Coast 
Guard Ensign.
    (3) The Captain of the Port Hampton Roads and the Sector Duty 
Officer at Sector Hampton Roads in Portsmouth, Virginia can be 
contacted at telephone number (757) 668-5555.
    (4) The Captain of the Port Representative enforcing the safety 
zone can be contacted on VHF-FM marine band radio, channel 13 
(156.65Mhz) and channel 16 (156.8Mhz).
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (e) Enforcement Period. This rule is enforced on September 27, 2008 
from 9 p.m. to 10 p.m.


[[Page 54689]]


    Dated: September 2, 2008.
Patrick B. Trapp,
Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads.
[FR Doc. E8-22237 Filed 9-22-08; 8:45 am]
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