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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2009-0526] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing five temporary safety zones for the “Windjammer Days Fireworks”, the “Boothbay Harbor Fourth of July Fireworks”, the “Heritage Days Fireworks”, the “Westerlund's Landing Party Fireworks”, and the “Town of Woolwich 250th Celebration” in the towns of Boothbay Harbor, South Gardiner, and Woolwich, Maine. These temporary safety zones are necessary to provide for the safety of life on the navigable waters by prohibiting spectators, vessels, and other users of the waterway from entering an area surrounding the fireworks launch site due to the hazards associated with fireworks displays. 

# DATES:

This rule is effective from 8 p.m. on June 24, 2009 until 10 p.m. on August 3, 2009. 

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-0526 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-2009-0526 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. 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.                               ( print page 32076)                            and 5 p.m., Monday through Friday, except Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

                        If you have questions on this temporary rule, call or e-mail BMC Randy Bucklin, Coast Guard Sector Northern New England, Waterways Management Division; telephone 207-741-5440, e-mail                         *Randy.Bucklin@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 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 a notice and comment period would be impracticable due to the time constraints resulting from the immediacy of the upcoming events. The Coast Guard did not receive notification of the exact location or proposed dates for the fireworks events in sufficient time to issue a NPRM for this rulemaking. Further, the expeditious implementation of this rule is in the public interest because it will help ensure the safety of those involved in displaying the fireworks, the spectators, and users of the waterway during the fireworks events. Finally, a delay or cancellation of the fireworks events in order to accommodate a notice and comment period is contrary to the public's interest in this event occurring as scheduled. 

                    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**                    . As noted above, the Coast Guard finds that it is both impractical and contrary to public interest to delay the effective date of this rule for 30 days after publication. Immediate action is needed in order to ensure the safety of the fireworks display crew, spectators and users of the waterway. The public will likely have close to 30 days notice after publication in the                     **Federal Register**                     for the two events scheduled in August, specifically the Westerlund's Landing Party Fireworks and the Town of Woolwich 250th Celebration Fireworks.                 

## Background and Purpose 

The “Windjammer Days Fireworks”, the “Boothbay Harbor Fourth of July Fireworks”, the “Heritage Days Fireworks”, the “Westerlund's Landing Party Fireworks”, and the “Town of Woolwich 250th Celebration” are annual marine fireworks events held in the months of June, July, and August, in the towns of Boothbay Harbor, South Gardiner, and Woolwich Maine. 

These regulations will establish fixed safety zones around the perimeter of the affected portions of Boothbay Harbor, Woolwich, and South Gardiner waterways. These safety zones are designed to protect spectators and vessels from the hazards associated with fireworks displays, and to protect the sponsors from the dangers of nearby vessel traffic by preventing entry into the zone during the enforcement time unless prior authorization is received by the Coast Guard Captain of the Port Northern New England. Hazards include the explosive and flammable nature of the fireworks and the risks to persons and property that could come in contact with burning material as well as the associated high noise level to those in close proximity to the explosions. 

## Discussion of Rule 

This rule creates the following temporary safety zones: “Windjammer Days Fireworks”: All navigable waters of Boothbay Harbor within a 500 yard radius of the fireworks launch site in the vicinity of Clam Rock in approximate location latitude 43°50′38″ N, longitude 069°37′57″ W. This safety zone will be enforced from 8 p.m. to 10 p.m. on June 24, 2009 with a rain date of July 4, 2009; “Boothbay Harbor Fourth of July Fireworks”: All navigable waters of Boothbay Harbor within a 500 yard radius of the fireworks launch site within the vicinity of Clam Rock in approximate location latitude 43°50′38″ N, longitude 069°37′57″ W. This safety zone will be enforced from 8 p.m. to 10 p.m. on July 5, 2009 with a rain date of July 6, 2009; 

*“Heritage Days Fireworks”:*                     All navigable waters of the Kennebec River within a 500 yard radius of the fireworks launch site in the vicinity of Reed and Reed Boat Yard, Woolwich, Maine in approximate location latitude 43°54′56″ N, longitude 069°48′16″ W. This safety zone will be enforced from 8 p.m. to 10:30 p.m. on August 1, 2009 with a rain date of August 2, 2009;                

*“Westerlund's Landing Party Fireworks”:*                     All navigable waters of the Kennebec River within a 500 yard radius of the fireworks launch site in the vicinity of Nehumkeag Island, South Gardiner, Maine in approximate position latitude 44°10′19.56″ N, longitude 069°45′24.68″ W. This safety zone will be enforced from 9 p.m. to 10 p.m. on August 2, 2009 with a rain date of August 3, 2009;                 

*“Town of Woolwich 250th Celebration”:*                     All navigable waters of the Kennebec River within 500 yards of the fireworks launch site in the vicinity of Reed and Reed Dockyard, Woolwich, Maine in approximate location latitude 43°54′59.06″ N, longitude 069°48′16.23″ W. This safety zone will be enforced from 9 p.m. to 10 p.m. on August 2, 2009 with a rain date of August 3, 2009.                 

During the times when the safety zones are in effect, vessel traffic will be restricted within the affected locations. Entry into these zones by any person or vessel will be prohibited unless specifically authorized by the Captain of the Port Northern New England, or his designated representatives. 

The Coast Guard has determined that the safety zones will not have a significant impact on commercial vessel traffic due to the temporary nature of the zones' time and scope. The zones have been limited to the areas surrounding the events and they will be enforced only during the times of the fireworks displays. Public notifications will be made via marine information broadcasts during the effective period of these safety zones. 

## 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. 

                    The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: The safety zones will be of limited duration, cover only a small portion of the navigable waterways and the events are designed to avoid, to the extent practicable, deep draft, fishing, and recreational boating traffic routes. In addition, vessels may be authorized to transit the zone with permission of the Captain of the Port Northern New England; and maritime                           ( print page 32077)                        advisories will be broadcast during the duration of the enforcement periods.                 

## 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 designated safety zones during the enforcement periods stated above. 

The safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zones are of limited size and of short duration and vessels that can safely do so may navigate in all other portions of the waterways except for the area designated as a safety zone. Additionally, before the enforcement periods, the Coast Guard will issue maritime advisories via marine broadcasts and advisories. 

## 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). 

## 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 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 safety zones. An environmental analysis checklist and a categorical exclusion determination will be available for review in the docket where indicated under                     **ADDRESSES**                    .                 

      ( print page 32078)    

# 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. 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.T01-0526 to read as follows: 

§ 165.T01-0526 

(a) Locations. The following areas are temporary safety zones: 

(1) For the “Windjammer Days Fireworks”: all navigable waters of Boothbay Harbor within a 500 yard radius of the fireworks launch site in the vicinity of Clam Rock in approximate location latitude 43°50′38″ N, longitude 069°37′57″ W. 

(2) For the “Boothbay Harbor Fourth of July Fireworks”: all navigable waters of Boothbay Harbor within a 500 yard radius of the fireworks launch site in the vicinity of Clam Rock in approximate location latitude 43°50′38″ N, longitude 069°37′57″ W. 

(3) For the “Heritage Days Fireworks”: all navigable waters of the Kennebec River within a 500 yard radius of the fireworks launch site in the vicinity of Reed and Reed Boat Yard, Woolwich, Maine enclosed by an area starting at latitude 43°54′56″ N, longitude 069°48′16″ W. 

(4) For the “Westerlund's Landing Party Fireworks”: all navigable waters of the Kennebec River within a 500 yard radius of the fireworks launch site in the vicinity of Nehumkeag Island, South Gardiner, Maine enclosed by an area starting at latitude 44°10′19.56″ N, longitude 069°45′24.68″ W. 

(5) For the “Town of Woolwich 250th Celebration”: all navigable waters of the Kennebec River within a 500 yard radius of the fireworks launch site in the vicinity of Reed and Reed Dockyard, Woolwich, Maine enclosed by an area starting at latitude 43°54′59″ N, longitude 069°48′16″ W. 

(b) Enforcement Period. The temporary safety zones will be enforced during the following dates and times: 

(1) For the “Windjammer Days Fireworks”: June 24, 2009 (Rain Date: July 4, 2009), between 8 p.m. to 10 p.m. 

(2) For the “Boothbay Harbor Fourth of July Fireworks”: July 4, 2009 (Rain Date: July 5, 2009), between 8 p.m. to 10 p.m. 

(3) For the “Heritage Days Fireworks”: July 5, 2009 (Rain Date: July 6, 2009), between 8 p.m. to 10 p.m. 

(4) For the “Westerlund's Landing Party Fireworks”: August 1, 2009 (Rain Date: August 2, 2009), between 8 p.m. to 10:30 p.m. 

(5) For the “Town of Woolwich 250th Celebration” August 2, 2009 (Rain Date: August 3, 2009), between 9 p.m. to 10 p.m. 

(c) Regulations. 

(1) During the enforcement period, entry into, transiting, remaining within or anchoring in these safety zones is prohibited unless authorized by the Captain of the Port Northern New England or his designated representatives. 

(2) These safety zones are closed to all vessel traffic, except as may be permitted by the Captain of the Port Northern New England or his designated representatives. 

(3) The “designated representative” is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Northern New England to act on his behalf. The designated representative will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. 

(4) Vessel operators desiring to enter or operate within the safety zones shall contact the Captain of the Port Northern New England or his designated representative via VHF Channel 16 to obtain permission to do so. 

(5) Vessel operators given permission to enter or operate in the safety zones must comply with all directions given to them by the Captain of the Port Northern New England or his designated representatives.

Dated: June 23, 2009. 

B.J. Downey Jr., 

Commander, U.S. Coast Guard, Acting Captain of the Port, Sector Northern New England.

[FR Doc. E9-15874 Filed 7-6-09; 8:45 am] 

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