Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Rules and Regulations 23793 

PART 1308—SCHEDULES OF 

CONTROLLED SUBSTANCES 

■ 1. The authority citation for part 1308 

continues to read as follows: 

Authority: 21 U.S.C. 811, 812, 871(b), 

unless otherwise noted. 

■ 2. Section 1308.12 is amended in the 

table by adding a new paragraph (c)(28) 

to read as follows: 

§ 1308.12 Schedule II. 

* * * * * 

(c) * * * 

(28) Tapentadol ................................. 9780 

* * * * * 

Dated: May 15, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–11933 Filed 5–20–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0089] 

RIN 1625–AA00 

Safety Zone; Red Bull Air Race, Detroit 

River, Detroit, MI 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the Detroit River, Detroit, Michigan. 

This zone will restrict vessels from 

portions of the Detroit River during the 

Red Bull Air Race. This temporary 

safety zone is necessary to protect 

spectators and vessels from the hazards 

associated with air races. 

DATES: This rule is effective from 9 a.m. 

on June 11, 2009 through 6:30 p.m. on 

June 14, 2009. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2009–0089 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– 

2009–0089 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. This 

material is 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 rule, call or 

e-mail CDR Joseph Snowden, 

Prevention Department, Sector Detroit, 

Coast Guard; telephone (313) 568–9580, 

e-mail Joseph.H.Snowden@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 

On April 16, 2009, we published a 

notice of proposed rulemaking (NPRM) 

entitled Safety Zone; Red Bull Air Race, 

Detroit River, Detroit, MI in the Federal 

Register (74 FR 17627). We received one 

comment on the proposed rule. No 

public meeting was requested, and none 

was held. 

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. Delaying this rule would be 

contrary to the public interest of 

ensuring, to the extent practicable, the 

safety and security of the spectators and 

participants during this event and 

immediate action is necessary to 

prevent possible injury, loss of life, or 

property. 

Background and Purpose 

This temporary safety zone is 

necessary to ensure, to the extent 

practicable, the safety of vessels and 

spectators from hazards associated with 

an air race. The Captain of the Port 

Detroit has determined air races in close 

proximity to watercraft and 

infrastructure pose significant risk to 

public safety and property. The likely 

combination of large numbers of 

recreation vessels, possible alcohol use, 

airplanes traveling at high speeds and 

performing aerial acrobatics, and large 

numbers of spectators in close 

proximity to the water could easily 

result in serious injuries or fatalities. 

Establishing a safety zone around the 

location of the race course will help 

ensure the safety of persons and 

property at these events and help 

minimize the associated risks. 

Discussion of Comments and Changes 

We received one letter, containing 

several comments on this rulemaking. 

First, the commenter stated that closure 

of the Detroit River for these air races 

violates the Boundary Waters Treaty of 

1909. The Coast Guard disagrees that 

the Coast Guard’s action or the action by 

Canada violates this treaty. The 

Boundary Waters Treaty does guarantee 

that ‘‘navigation of all navigable 

boundary waters’’ shall be ‘‘free and 

open’’ to ‘‘inhabitants * * * ships, 

vessels, and boats’’ of both the United 

States and Canada, ‘‘subject, however, to 

any laws and regulations of either 

country.’’ Both the United States and 

Canada have determined, pursuant to 

each country’s laws and regulations, 

that brief closures of the Detroit River 

are reasonably necessary to protect 

spectators and vessels from hazards 

associated with these air races. 

Moreover, under fundamental 

principles of international law, only the 

States that are a party to an international 

agreement are generally entitled to 

allege a breach of the terms of the 

agreement by the other. For this event, 

Canada has also agreed that a closure of 

a small portion of the river for a short 

period of time is a reasonable and 

necessary measure. 

Second, the commenter stated that the 

proposed rule constituted a ‘‘public 

taking’’ in contravention of the Fifth 

Amendment to the United States 

Constitution; in that vessel owners will 

experience delays that will result in lost 

profits. This commenter did not put 

forward any specific company or vessel 

that would be so affected. The Coast 

Guard disagrees with this comment. In 

general, a ‘‘taking’’ occurs when a 

governmental entity uses its powers to 

permanently deprive a person or entity 

of property. The Captain of the Port has 

considered the needs of port 

stakeholders and the maritime 

community and has determined that 

this safety zone is necessary to protect 

the public and maintain safety of 

navigation. Further, the rule is only 

temporary in nature, not permanent, 

and in the event that this temporary 

safety zone affects shipping, commercial 

vessels may request permission from the 

Captain of the Port Detroit to transit 

through the safety zone. Moreover, the 

safety zone will only be enforced for a 

short period of time on the enforcement 

dates. Lastly, the Coast Guard believes 

vessel owners have had sufficient 

advance notice of this safety zone, such 

that they should be able to work vessel 

schedules around the enforcement 

periods of the proposed safety zone to 

minimize or avoid lost profits. 

Third, the commenter stated that the 

race sponsor must be required to agree 

in advance to reasonably compensate 

vessel owners for losses incurred by 

delays and post a bond sufficient to 

cover anticipated vessel losses. 

Otherwise, this commenter stated, there 

is no incentive for race organizers to 

work collaboratively with vessel 


dwashington3 on PROD1PC60 with RULES
23794 Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Rules and Regulations 

operators. The commenter also stated 

that if a vessel delayed by the proposed 

safety zone missed the closing of the 

Sault Ste. Marie locks at the end of the 

navigation season in January 2010, then 

that vessel owner should be 

compensated for any lost cargo 

transportation opportunities by the race 

sponsors. 

This comment is outside the scope of 

this rulemaking and the Coast Guard 

disagrees with this comment. The Coast 

Guard is authorized by Congress to 

provide for safe navigation and vessel 

safety in U.S. waters and to ensure the 

safety of all waterway users. As such, in 

this rule, the Coast Guard is balancing 

all competing needs by enforcing the 

safety zone during the air race, but also 

providing ample notification to vessel 

owners so that they may plan according 

and thereby reduce or avoid lost profits. 

The Coast Guard does not believe that 

a compensation agreement is necessary 

in order for the race sponsors to work 

collaboratively with vessel owners. 

Compensation for vessel delays based 

on the existence of a safety zone is not 

required under the law. Likewise, the 

Coast Guard has no authority to order 

the race sponsors to post bond or agree 

to any sort of compensation scheme. 

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; the location of 

the zone, which is an area where the 

Coast Guard expects insignificant 

adverse impact to mariners from the 

zone’s activation; and the ability of 

commercial vessels to request 

permission from the Captain of the Port 

Detroit to transit through the safety 

zone. 

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 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 safety zone located in the Detroit 

River between 9 a.m. and 6:30 p.m. on 

June 11, through June 14, 2009. 

This safety zone will not have a 

significant economic impact on a 

substantial number of small entities for 

the following reasons. This rule will be 

in effect for short period of time each 

day it is enforced. Additionally, small 

entities such as passenger vessels, have 

been informed of this event since its 

planning stages, and have had ample 

time to make alternate arrangements 

with regards to mooring positions and 

business operations during the hours 

this safety zone will be in place. 

Furthermore, local sailing and yacht 

clubs will be notified prior to the event 

by Coast Guard Station Belle Isle with 

information on what to expect during 

the event with the intention of 

minimizing interruptions in their 

normal business practices. In the event 

that this temporary safety zone affects 

shipping, commercial vessels may 

request permission from the Captain of 

the Port Detroit 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 COTP 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), 

in the NPRM we offered 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. We did not receive 

any comments for this section. 

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). We did not receive any 

comments for this section. 

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. We did not 

receive any comments for this section. 

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. We did not receive any 

comments for this section. 

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. We did not 

receive any comments for this section. 

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. We did 

not receive any comments for this 

section. 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Rules and Regulations 23795 

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. We 

did not receive any comments for this 

section. 

Indian Tribal Governments 

The Coast Guard recognizes the treaty 

rights of Native American Tribes. 

Moreover, the Coast Guard is committed 

to working with Tribal Governments to 

implement local policies and to mitigate 

Tribal concerns. We have determined 

that this rule and fishing rights 

protection need not be incompatible. 

We have also determined that 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. 

Nevertheless, Indian Tribes that have 

questions concerning the provisions of 

this rule or options for compliance are 

encouraged to contact the point of 

contact listed under FOR FURTHER

INFORMATION CONTACT. We did not 

receive any comments for this section. 

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. 

We did not receive any comments for 

this section. 

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. We did not receive any 

comments for this section. 

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 event 

establishes a safety zone, therefore 

paragraph (34)(g) of the Instruction 

applies. 

An environmental analysis checklist 

and a 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; Public 

Law 107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Section 165.T09–0089 is added to 

read as follows: 

§ 165.T09–0089 Safety Zone; Red Bull Air 

Race, Detroit River, Detroit, MI. 

(a) Location. The following area is a 

temporary safety zone: all U.S. waters of 

the Detroit River, Detroit, MI, bound by 

a line extending from a point on land 

southwest of Joe Louis Arena at position 

42°19.4′ N; 083°3.3′ W, northeast along 

the Detroit shoreline to a point on land 

at position 42°20.0′ N; 083°1.2′ W, 

southeast to the international boarder 

with Canada at position 42°19.8′ N; 

083°1.0′ W, southwest along the 

international border to position 42°19.2′ 

N; 083°3.3′ W, and northwest to the 

point of origin at position 42°19.4′ N; 

083°3.3′ W. (DATUM: NAD 83). 

(b) Enforcement Period. The safety 

zone will be enforced daily from 9 a.m. 

to 6:30 p.m. on June 11, 2009 through 

June 14, 2009. 

(c) Regulations. (1) In accordance with 

the general regulations in § 165.23 of 

this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Detroit, 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 

Detroit or his designated on-scene 

representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port is any Coast 

Guard commissioned, warrant, or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

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 his on-scene representative to obtain 

permission to do so. 

(5) 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 his 

on-scene representative. 

Dated: May 6, 2009. 

F.M. Midgette, 

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

Port Detroit. 

[FR Doc. E9–11835 Filed 5–20–09; 8:45 am] 

BILLING CODE 4910–15–P 


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