Special Local Regulations; Recurring Marine Events Within the Fifth Coast Guard District

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is amending its special local regulations established for recurring marine events that take place within the Fifth Coast Guard District area of responsibility. The Coast Guard has periodically updated this regulation to account for changes in these marine events. Through this final rule, the current list of recurring marine events requiring special local regulations is updated with revisions, additional events, and the removal of events that no longer take place in the Fifth Coast Guard District area of responsibility. When these special local regulations are enforced, certain restrictions are placed on marine traffic in specified areas to promote safety on the water around marine events.

DATES:

This rule is effective December 8, 2021.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2020-0332 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Ethan Coble, Fifth Coast Guard District Office of Waterways Management, U.S. Coast Guard; telephone (757) 398-7745, email Ethan.J.Coble@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

APA Administrative Procedure Act

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

MFR Memorandum for Record

NPRM Notice of proposed rulemaking

PATCOM Patrol Commander

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

The Coast Guard regularly updates the regulations for recurring special local regulations within the Fifth Coast Guard District listed in 33 CFR 100.501, and its respective tables. These recurring special local regulations are for marine events that take place either on or over the navigable waters of the Fifth Coast Guard District as defined at 33 CFR 3.25. These regulations were last amended June 13, 2017 (81 FR 81005). Since then, Marine Events within the Fifth US Coast Guard District have been newly created or changed in a way that varies from their description in this regulation. In response, on June 03, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulations; Recurring Marine Events and within the Fifth Coast Guard District (86 FR 29711). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to special local regulations and recurring marine events. The comment period ended on July 6, 2021, and we received no comments.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Secretary has delegated ports and waterways authority, with certain reservations not applicable here, to the Commandant via DHS Delegation No. 00170.1(II)(70), Revision No. 01.2. The Commandant has further delegated these authorities within the Coast Guard as described in 33 CFR 1.05-1 and 6.04-6. The Coast Guard has determined that the events listed in this rule could pose a risk to participants or waterway users if normal vessel traffic were to interfere with the event. Possible hazards include risks of participant injury or death resulting from near or actual contact with non-participant vessels traversing through the regulated areas. In order to protect the safety of all waterway users, including event participants and spectators, this rule establishes special local regulations for the time and location of each marine event. This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement, unless authorized by the Captain of the Port (COTP), or designated Event Patrol Commander.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published June 3, 2021. We made no changes to the regulatory text as it was proposed in our NPRM. The following discussion explains the changes made to the CFR by this rule.

A. Changes To Improve Clarity and Reflect Current Coast Guard Marine Event Policies

We have made several stylistic and formatting changes to update 33 CFR 100.501, and associated tables, to provide greater clarity and remove potential ambiguities. We have also made revisions to reflect current Coast Guard marine event policy. The following is a summary of changes from the current regulatory text:

• Plain language edits, such as switching from passive to active voice and more clearly stating the enforcement period for each event.
• Writing regulatory requirements and definitions in the singular rather than the plural, where appropriate.
• Listing definitions and the events by COTP Zone in alphabetical order.
• Reformatting the table entries so they all are similar.
• Separating the special local regulations for each COTP Zone into their own tables.
• Amending the name and location for Sector Virginia to Portsmouth, VA (where the command center is located), and updating the phone number for Sector North Carolina.

Additionally, we consolidated all defined terms into a single paragraph, 33 CFR 100.501(b), and listed them in alphabetical order. Currently the defined terms “buffer area”, “race area”, and “spectator area” appear in the regulatory requirements paragraph 33 CFR 100.5014(c) rather than with the definitions. These definitions have been moved to the definition section and put into alphabetical order. Regulatory requirements for these areas will remain in the regulatory requirements portion of the regulation.

We changed the defined term of “buffer area” to “buffer zone” to comport with the more common usage. The definition is revised to reflect that it may sometimes be appropriate to utilize a buffer zone at the event if there is not a spectator area within the regulated area.

We changed the defined term “Coast Guard Patrol Commander” to “Event Patrol Commander or Event PATCOM” in alignment with updated local policy. The underlying associated definition remains the same: A Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP to act on their behalf.

We changed the defined term of “official patrol” to “official patrol vessel or official patrol” in alignment with updated local policy. The text of the definition remains unchanged except for some additional language to allow the Event PATCOM to be augmented by local, state, or federal officials authorized to act in support of the Coast Guard in accordance with local agreements. This revision enhances the resources available to the COTP to ensure the safety and security of the public during these events.

We removed the defined term, “spectator”, and added definitions for “participant” and “non-participant”. This wording change better reflects who is actually present in and near regulated areas and how the Coast Guard regulates their activities.

B. Delegation of Authority for Determination of Requirement for a Marine Patrol

We amended current paragraph (b) and (c) in the final text, delegating authority to the local COTP to determine when a marine patrol is required. This delegation of authority from the District Commander provides the local operational commander with the ability to manage and maintain safety and security for events within their area of responsibility. We have also updated the text to allow for other government agencies to provide safety zone enforcement when working under local agreements and added the term Event Patrol Commander (Event PATCOM). Collectively, these changes enable the local Captain of the Port to retain operational control and incorporate risk based decision making to the event. Finally, a paragraph has been added giving authority to the COTP, COTPR, or Event PATCOM to postpone or cancel the event to ensure the safety of the event and the public.

C. Updates to Recurring Events Table 33 CFR 100.501

This rule adds 7 new special local regulations for recurring marine events, revises 12 previously established regulations for recurring marine events, and removes 14 recurring events listed in 33 CFR 100.501 for the reasons provided in the table. The revised events and the new events are required to comply with the requirements in 33 CFR 100.501.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the short amount of time that vessels will be restricted from certain parts of the waterway and the small size of these areas that are usually positioned away from high vessel traffic zones. Generally, vessels will not be precluded from getting underway, or mooring at any piers or marinas currently located in the vicinity of the regulated areas. Advance notifications will also be made to the local maritime community by issuance of Local Notice to Mariners, Broadcast Notice to Mariners via VHF-FM marine channel 16, Marine Safety Information or Security Bulletins so mariners can adjust their plans accordingly. Notifications to the public for most events will typically be made by local newspapers, radio and TV stations. The Coast Guard anticipates that these special local regulations will only be enforced one to three times per year.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 received no comments from the Small Business Administration on this rulemaking. 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.

While some owners or operators of vessels intending to transit through a safety zone may be small entities, for the reasons stated in section IV.A above, this rule will not have a significant economic impact on any vessel owner or operator. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The Coast Guard will ensure that small entities are able to operate in the areas where events are occurring to the extent possible while ensuring the safety of the public. The enforcement period will be short in duration and, in many of the areas, vessels can transit safely around the special local regulation zone. Generally, permission to enter, remain in, or transit through these regulated areas during the enforcement period may be given when deemed safe to do so by the Event PATCOM on scene.

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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, 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.

E. 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 (adjusted for inflation) 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.

F. Environment

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 that apply to recurring special local regulations for marine events that take place either on or over the navigable waters of the United States. Some events by their nature may introduce potential for adverse impact on the safety or other interest of waterway users or waterfront infrastructure within or close proximity to the event area. It is categorically excluded from further review under paragraph L [61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A memorandum for record (MFR) supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

List of Subjects in 33 CFR Part 100

• 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 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS

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

Authority: 46 U.S.C. 70041; 33 CFR 1.05-1.

2. Revise § 100.501 to read as follows: