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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2010-0791]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing a temporary safety zone on Lake Erie and Sandusky Bay near Cedar Point, Ohio. The safety zone is intended to restrict vessels from portions of the Lake Erie during the Revolution 3 Cedar Point Triathlon. The temporary safety zone is necessary to protect participants of the swim portion of the triathlon race from potential hazards from vessels operating in the area.

# DATES:

This rule is effective from 6:30 a.m. through 9:30 a.m. on September 12, 2010.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0791 and are available online by going to                         *http://www.regulations.gov*, inserting USCG-2010-0791 in the “Keyword” box, and then clicking “search.” 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, contact or e-mail MSTC Benjamin Wagner, Response Department, Marine Safety Unit Toledo, Coast Guard; telephone (419) 418-6008,                         *Benjamin.D.Wagner@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 an agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 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 publishing an NPRM is impractical as the Coast Guard did not receive notification of the final details of this event in sufficient time to issue an NPRM without delaying this rulemaking. A delay or cancellation of the event in order to allow for a notice and comment period is contrary to the public interest because of the hazards associated with vessel operation in close proximity to swimming participants. 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**                    . In addition, to the reasons stated above, this rule is intended to ensure the safety of the event participants, spectators, and other waterway users; thus any delay in the rule's effective date is impractical.                

## Background and Purpose

The temporary safety zone is necessary to ensure the safety of participants of the swim portion of a triathlon race as well as the safety of mariners operating in the vicinity of the triathlon. Establishing this temporary safety zone to control vessel movement around the location of the triathlon swim event will help ensure the safety of persons and property at the event and help minimize any potential risks associated with the event.

## Discussion of Rule

                    The Coast Guard is establishing a temporary safety zone. The safety zone will be enforced from 6:30 a.m. through 9:30 a.m. on September 12, 2010. This safety zone will encompass all waters of Lake Erie within the geographic area bounded by the following coordinates: starting at position 41°29′06″ N, 082°40′56″ W; then extending northeast to position 41°29′37″ N, 082°40′14″ W; then extending southeast to position 41°29′14″ N, 082°39′52″ W; then extending southwest to position                           ( print page 55478)                        41°28′46″ N, 082°40′38″ W; then returning to the starting position.                

In the event of inclement weather, an alternate safety zone area will be utilized with the date and times remaining the same. The alternate location within Sandusky Bay will encompass all waters of the Sandusky Bay within the geographic area bounded by the following coordinates: starting at position 41°28′22″ N, 082°40′44″ W; then extending northwest to position 41°28′45″ N, 082°41′11″ W; then extending southeast to position 41°28′12″ N, 082°41′06″ W; then returning to the starting position.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port Detroit, or designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit, or his designated on scene representative. The Captain of the Port Detroit, or designated on-scene representative may be contacted via VHF Channel 16.

## 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. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.

This determination is based on the minimal time that vessels will be restricted from the zone and because the zone is in an area where the Coast Guard expects minimal adverse impact to mariners from the zone's activation.

## 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 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 or anchor in the applicable portions of the Lake Erie or Sandusky Bay near Cedar Point, OH identified below between 6:30 a.m. and 9:30 a.m. on September 12, 2010.

The safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The affected portions of Lake Erie and Sandusky Bay do not experience heavy vessel traffic on a regular basis. Any vessels that wish to utilize these waterways can be scheduled around the event. The safety zone will only be in effect during the morning of September 12, 2010 and will not substantially limit vessels intending to utilize the affected waterways. In the event that the temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit, or designated on-scene representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect. Additionally, the Captain of the Port Detroi, or on-scene representative will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the expected time.

## 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 could 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

## Taking of Private Property

This rule will 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 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 would not create an environmental risk to health or risk to safety that might 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.                          ( print page 55479)    

## 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 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 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)(g), of the Instruction. This rule involves the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction.

                    A final environmental analysis check list and categorical exclusion determination are 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
      - Waterways

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

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; 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add temporary § 165.T09-0791 is as follows: 

§ 165.T09-0791 

                            (a)                             *Location.*                             The following area is a safety zone:                        

(1) Primary Safety Zone; Lake Erie. All waters of Lake Erie within the geographic area bounded by the following coordinates: Starting at position 41°29′06″ N, 082°40′56″ W; then extending northeast to position 41°29′37″ N, 082°40′14″ W; then extending southeast to position 41°29′14″ N, 082°39′52″ W; then extending southwest to position 41°28′46″ N, 082°40′38″ W; then returning to the starting position. [DATUM: NAD 83].

(2) Alternate Safety Zone; Sandusky Bay. All waters of the Sandusky Bay within the geographic area bounded by the following coordinates: Starting at position 41°28′22″ N, 082°40′44″ W; then extending northwest to position 41°28′45″ N, 082°41′11″ W; then extending southeast to position 41°28′12″ N, 082°41′06″ W; then returning to the starting position. [DATUM: NAD 83].

                            (b)                             *Effective Period.*                             This regulation is effective from 6:30 a.m. through 9:30 a.m. on September 12, 2010. This regulation will be enforced as follows:                        

(1) On September 12, 2010 from 6:30 a.m. to 9:30 a.m., the safety zone listed in paragraph (a)(1) of this section will be enforced. In the event of inclement weather, the alternate safety zone listed in paragraph (a)(2) of this section will be enforced.

                            (c)                             *Regulations.*

(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting or anchoring within the safety zones is prohibited unless authorized by the Captain of the Port Detroit, or designated on-scene representative.

(2) The safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit, or designated on-scene representative.

(3) The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his or her behalf. The designated on-scene representative or the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit, or designated on-scene representative may be contacted via VHF Channel 16.

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit, or designated on-scene representative to obtain permission to do so. 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, or designated on-scene representative.

Dated: August 26, 2010.

J.E. Ogden,

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

[FR Doc. 2010-22771 Filed 9-10-10; 8:45 am]

BILLING CODE 9110-04-P