[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Proposed Rules]
[Pages 26138-26141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12603]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 100 and 165

[USCG-2009-0127]
RIN 1625-AA00


Safety Zones: Annual Events Requiring Safety Zones in the Captain 
of the Port Duluth Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishment of safety zones for 
annual events in the Captain of the Port Duluth Zone. This rule 
proposes removal of a safety zone currently located in part 100, and 
the addition of it to part 165. Further, this rule proposes new safety 
zones to be added to part 165. These safety zones are necessary to 
protect spectators, participants, and vessels from the hazards 
associated with fireworks displays.

DATES: Comments and related materials must reach the Coast Guard on or 
before July 1, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0127 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) 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.
    (3) Hand Delivery: Room W12-140 on the ground floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: LT Aaron Gross, Chief of Port 
Operations U.S. Coast Guard Sector Duluth; (218) 720-5286 Ext. 111.

[[Page 26139]]

I. 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. We have an agreement with the 
Department of Transportation (DOT) to use the Docket Management 
Facility.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0127), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name, mailing address, and 
an e-mail address or other contact information in the body of your 
document to ensure that you can be identified as the submitter. This 
also allows us to contact you in the event further information is 
needed or if there are questions. For example, if we cannot read your 
submission due to technical difficulties and you cannot be contacted, 
your submission may not be considered. You may submit your comments and 
material by electronic means, mail, fax, or delivery to the Docket 
Management Facility at the address under ADDRESSES, but please submit 
your comments and material by only one means. If you submit them by 
mail or 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 them 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. We may change this proposed rule in view of them.

B. 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 at 
any time, click on ``Search for Dockets,'' and enter the docket number 
for this rulemaking (USCG-2009-0127) in the Docket ID box, and click 
enter. You may also visit the Docket Management Facility in Room W12-
140 on the ground floor of the DOT West Building, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.

C. 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).

SUPPLEMENTARY INFORMATION:

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commanding Officer, Coast Guard 
Marine Safety Unit Duluth at the address under ADDRESSES explaining why 
one 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.

Background and Purpose

    This rule proposes the removal of the ``Duluth Fourth Fest 
Fireworks'' safety zone currently published in Sec.  100.901 and adding 
it to proposed Sec.  165.945. The Coast Guard proposes this change in 
an effort to consolidate all Captain of the Port Duluth Zone 4th of 
July fireworks display safety zones. Additionally, in Sec.  165.945 we 
propose adding safety zones for fireworks in support of the Cornucopia 
Fireworks display, Cornucopia, Wisconsin; City of Bayfield Fireworks 
display, Bayfield, Wisconsin; Madeline Island Fireworks display, 
LaPointe, Wisconsin; and the Ashland Fireworks display, Ashland, 
Wisconsin. These safety zones are necessary to protect vessels and 
people from the hazards associated with fireworks displays. Such 
hazards include obstructions to the waterway, the explosive danger of 
fireworks and falling debris.

Discussion of Proposed Rule

    The proposed rule is necessary to ensure the safety of vessels and 
people during annual firework events in the Captain of the Port Duluth 
area of responsibility that may pose a hazard to the public. This rule 
proposes the removal of a regulation currently published in 33 CFR 
100.901 under Sector Sault Ste. Marie, and the addition of it to 
proposed Sec.  165.945. It also proposes the addition of four new 
events never before published in the CFR. All of the events listed 
occur in the Captain of the Port Duluth Zone.
    The proposed safety zones will be enforced only immediately before, 
during, and after the aforementioned events.
    The Captain of the Port Duluth will notify the public that the 
zones in this proposal will be enforced by all appropriate means to the 
affected segments of the public including publication in the Federal 
Register. Such means of notification may also include, but are not 
limited to Broadcast Notice to Mariners or Local Notice to Mariners. 
The Captain of the Port will issue a Broadcast Notice to Mariners 
notifying the public when enforcement of the safety zone established by 
this section is cancelled.
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port or the designated representative. Entry 
into, transiting, or anchoring within the safety zone is prohibited 
unless authorized by the Captain of the Port Duluth, or his designated 
representative. The Captain of the Port or his designated 
representative may be contacted via VHF Channel 16.

Regulatory Evaluation

    This proposed 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 proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary.
    The Coast Guard's use of these safety zones will be periodic and of 
short duration. These safety zones will only be enforced immediately 
before, during, and after the time the events occur. The Coast Guard 
expects insignificant adverse impact to mariners from the activation of 
these safety zones.

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 proposed rule would affect the following entities, some of 
which might

[[Page 26140]]

be small entities: The owners of operators of vessels intending to 
transit or anchor in the areas designated as safety zones in 
subparagraphs (1) through (5) during the dates and times the safety 
zones are being enforced.
    These safety zones would not have a significant economic impact on 
a substantial number of small entities for the following reasons: This 
proposed rule would be in effect for short periods of time, and only 
once per year, per zone. The safety zones have been designed to allow 
traffic to pass safely around the zone whenever possible and vessels 
will be allowed to pass through the zones with the permission of the 
Captain of the Port.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed 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 proposed 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 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LT Aaron Gross, 
Chief of Port Operations, Coast Guard Marine Safety Unit Duluth, 
Duluth, MN at (218) 720-5286 Ext 111. 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 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 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 or more in any 
one year. Though this proposed rule will not result in such 
expenditure, we nevertheless discuss its effects elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule will not effect the 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 proposed 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

    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 
proposed 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 proposed 
rule or options for compliance are encouraged to contact the point of 
contact listed under FOR FURTHER INFORMATION CONTACT.

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.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD and Department of Homeland Security Management Directive 023-
01, 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 not likely to 
have a significant effect on the human environment. An environmental 
analysis checklist supporting this preliminary determination is 
available in the docket where indicated under ADDRESSES. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to

[[Page 26141]]

amend 33 CFR parts 100 and 165 as follows:

List of Subjects

33 CFR Part 100

    Regattas and Marine Parades.

33 CFR Part 165

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

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

    Authority: 33 U.S.C. 1233.


Sec.  100.901  [Amended]

    2. In Table 1 to Sec.  100.901 Table, under the entry for ``Sector 
Saulte Ste. Marie, MI'' remove the following: ``Duluth Fourth Fest 
Fireworks.
    Sponsor: Office of the Mayor, Duluth, MN.
    Date: 4th of July weekend.
    Location: That portion of the Duluth Harbor Basin Northern Section 
bounded on the south by a line drawn on a bearing of 087[deg] true from 
the Cargill Pier through Duluth Basin Lighted Buoy <greek-i>5 (LLNR 
15905) to the opposite shore on the north by the Duluth Aerial Bridge. 
That portion of Duluth Harbor Basin Northern Section within 600 yards 
of position 46[deg]46'47'' N 092[deg]06'10'' W.''

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    3. 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.

    4. Add Sec.  165.945 to read as follows:


Sec.  165.945  Safety Zones; Annual Fireworks Events in the Captain of 
the Port Duluth Zone.

    (a) Safety Zones. The following areas are designated Safety zones.
    (1) Duluth Fourth Fest, Duluth, MN. (i) Location. All waters of the 
Duluth Harbor Basin Northern Section within 600 yards of position 
46[deg]46'47'' N, 092[deg]06'10'' W.; at Duluth, MN. (DATUM: NAD 83).
    (ii) Enforcement date. This section is enforced from 7 p.m. to 11 
p.m. on July 4 of each year.
    (2) Cornucopia Fireworks, Cornucopia, WI. (i) Location. All waters 
of Lake Superior bounded by the arc of a circle within a 100-foot 
radius from the Fireworks launch site with its center position: 
46[deg]48'36'' N, 090[deg]48' 36'' W.; at Cornucopia, WI. (DATUM: NAD 
83).
    (ii) Enforcement date. This section is enforced from 9 p.m. to 11 
p.m. on July 4 of each year.
    (3) City of Bayfield Fireworks, Bayfield, WI. (i) Location. All 
waters of Lake Superior bounded by the arc of a circle with a 100-foot 
radius from the Fireworks launch site with its center in position: 
46[deg]48' 36'' N, 090[deg]48' 36'' W.; Bayfield, WI. (DATUM: NAD 83).
    (ii) Enforcement date. This paragraph is enforced from 9 p.m. to 11 
p.m. on July 4 of each year.
    (4) Madeline Island Fireworks, LaPointe, WI. (i) Location. All 
waters of Lake Superior bounded by the arc of a circle with a 250-foot 
radius from the fireworks launch site with its center in position: 
46[deg]46'42'' N, 090[deg]47'18'' W.; at Lapointe, WI. (DATUM: NAD 83).
    (ii) Enforcement date. This paragraph is enforced from 9:15 p.m. to 
10:30 p.m. on July 4 of each year.
    (5) Ashland Fireworks, Ashland, WI. (i) All waters of Lake 
Superior, near Ashland, Wisconsin, bounded by the arc of a circle with 
a 250-foot radius from the Fireworks launch site with its center in 
position: 46[deg]46'42'' N, 090[deg]47'18'' W.; Ashland, WI. (DATUM: 
NAD 83).
    (ii) Enforcement date. This paragraph is enforced from 9 p.m. to 11 
p.m. on July 4 of each year.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative means any Coast Guard commissioned, 
warrant, or petty officer designated by the Captain of the Port Duluth 
to monitor a safety zone, permit entry into the zone, give legally 
enforceable orders to persons or vessels within the zones, and take 
other actions authorized by the Captain of the Port.
    (2) Public vessel means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transiting, or anchoring within 
this safety zone is prohibited unless authorized by the Captain of the 
Port Duluth, or his designated representative.
    (2)(i) These safety zones are closed to all vessel traffic, except 
as may be permitted by the Captain of the Port, or his designated 
representative.
    (ii) All persons and vessels must comply with the instructions of 
the Coast Guard Captain of the Port, or his designated representative.
    (iii) Upon being hailed by the U.S. Coast Guard by siren, radio, 
flashing light or other means, the operator of a vessel shall proceed 
as directed.
    (3)(i) All vessels must obtain permission from the Captain of the 
Port, or his designated representative to enter, move within, or exit 
the safety zone established in this section when this safety zone is 
enforced.
    (ii) Vessels and persons granted permission to enter the safety 
zone must obey all lawful orders or directions of the Captain of the 
Port or a designated representative.
    (iii) While within a safety zone, all vessels must operate at the 
minimum speed necessary to maintain a safe course.
    (d) Exemption. Public vessels, as defined in paragraph (b) of this 
section, are exempt from the requirements in this section.
    (e) Waiver. For any vessel, the Captain of the Port Duluth, or his 
designated representative may waive any of the requirements of this 
section, upon finding that operational conditions or other 
circumstances are such that application of this section is unnecessary 
or impractical for the purposes of public or environmental safety.
    (f) Notification. The Captain of the Port Duluth will notify the 
public by all appropriate means that the zones in this proposal will be 
enforced. Notification may include publication in the Federal Register, 
Broadcast Notice to Mariners, or Local Notice to Mariners. The Captain 
of the Port will issue a Broadcast Notice to Mariners notifying the 
public when enforcement of the safety zone established by this section 
is cancelled.

    Dated: May 19, 2009.
M.P. Lebsack,
Commander, U.S. Coast Guard, Captain of the Port Duluth.
 [FR Doc. E9-12603 Filed 5-29-09; 8:45 am]
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