Temporary Regulations: OPSAIL MAINE 2000, Portland, ME

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing temporary regulations, including a regulated area, safety zone and anchorage grounds during OPSAIL MAINE 2000 events to be held between July 28 and 30, 2000 in the port of Portland, Maine. These regulations are necessary to promote the safe navigation of vessels, and the safety of life and property during the heavy volume of vessel traffic expected during this event.

DATES:

This rule is effective from July 28, 2000 until July 30, 2000.

ADDRESSES:

Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD1-99-194 and are available for inspection and copying at the Coast Guard Marine Safety Office, 103 Commercial St. Portland, Maine 04101-4726, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant E. Doucette, Chief of Response and Planning, Marine Safety Office, Portland at (207) 780-3251.

SUPPLEMENTARY INFORMATION:

Regulatory Information

On March 17, 2000, the Coast Guard published a Notice of Proposed Rule Making (NPRM) entitled Temporary Regulations: Opsail Maine 2000, Portland, Maine in the Federal Register, Volume 65, Page 14498. The Coast Guard received 3 letters commenting on the proposed rule. One letter suggested a public hearing be held. For reasons set out below, a public hearing was not held.

Background and Purpose

OPSAIL Maine 2000, Inc. is sponsoring the OPSAIL Maine 2000 Parade of Tall Ships as well as a fireworks display. These events are scheduled to take place between July 28th and 30th 2000 in the Port of Portland and surrounding waters. The Coast Guard anticipates up to 1,000 spectator craft for these events. These regulations create temporary anchorage regulations, vessel movement controls, and safety zones. The regulations are in effect at various times in Portland Harbor between July 28-30, 2000. The expected vessel congestion due to the large number of participating and spectator vessels poses a significant threat to the safety of life and the safety of the port. These rules provide for the safety of life on navigable waters and promotes maritime safety and protects participants and spectators during this event.

Discussion of Rule

These regulations create temporary anchorage regulations and vessel movement controls. Special local regulations will be in effect for parts of Portland Harbor for the period beginning at 11 a.m. on Friday, July 28, and ending at 4 p.m. on Friday, July 28. The safety of parade participants and spectators will require that spectator craft and all other traffic be kept at a safe distance from participating tall ships and vessels. No vessel will be permitted to move within the regulated area during that time without permission from the Captain of the Port. This is required to ensure the safety of both participating and spectator vessels during the Parade of Sail. Normal port operations will resume within the area following the Parade of Sail.

These regulations temporarily suspend existing anchorage areas, and establish new areas within the port to provide spectator viewing areas and maintain a clear parade route for participating vessels. The Parade of Sail will begin at Portland Head Light, and proceed along the main channel into Portland Harbor. The safety of parade participants and spectators require that all vessels remain clear of the main channel while the participating vessels are on the parade route.

These regulations also establish a safety zone around a pyrotechnics barge from which fireworks will be launched. An area within a 1500-foot radius around the vessel is designated as a safety zone. This safety zone is needed to protect the maritime public from possible hazards associated with the launching of fireworks in Portland Harbor.

Discussion of Comments and Changes

The Coast Guard received three comments during the comment period.

One comment concerned access by residents to Cushing Island and by commercial ferries and water taxis to Cushing Island. The writer cited 33 CFR § 100.CGD1-194(c)(2) of the Notice of Proposed Rule Making, which provides some pre-arranged movement of commercial vessels, and requested to meet and discuss access issues. A meeting was held on June 12, 2000 at the Marine Safety Office in Portland with those inspected and uninspected small passenger vessel operators most affected, including the author of this comment, to coordinate some limited and controlled harbor movements prior to and in the early stages of, the timeframe for the regulated area. The Coast Guard recognizes that service to inhabited islands in Casco Bay will be disrupted. The specifics of these temporary regulations are designed to minimize interference to this service, while maintaining a necessary level of safety.

The Coast Guard received one comment regarding small passenger vessels engaged in scenic cruises of the waters affected by the regulated area. The author of the comment was concerned that his business would be severely impacted by the closure of the main channel during the OPSAIL Parade. A follow-up telephone conversation with the author of the comment indicated that he believed the regulated area was for the entire four days of OPSAIL, rather than the limited 11 a.m. to 4 p.m. period on July 28, 2000 set aside for the parade. Small passenger vessel operators are not required by this rule to remain at the dock. These vessels may operate outside of the regulated area during the Parade of Sail, or may anchor in designated spectator areas along with other spectator craft.

The final comment received discussed the potential impact to lobstermen and requested a public hearing. In a follow-up conversation, the author of the comment indicated that he believed that the regulated area was for the entire four days of the OPSAIL marine events. The regulated area established for the Parade of Sail is for a limited duration and a limited area of the harbor. Once this was clarified, the author's concerns were alleviated. In addition, the local Coast Guard is working to, and will continue to work to coordinate efforts between OPSAIL Maine organizers and the local fishermen to address the concerns of fishermen.

The Coast Guard has discussed and made available the proposed regulations to the local Port Safety Forums and Area Committee. The Marine Safety Office hosted Small Passenger Vessel Operator meetings during which the NPRM was discussed. In March these temporary regulations were explained and by April were provided to the public at various “fisherman gatherings”, via facsimile, e-mail and web page postings. For these reasons, the limited number of written comments received and the special meeting held on June 12th, the Coast Guard feels that a public hearing is not necessary.

The coordinates identifying the aids to navigation positions defining the boundary of Spectator Anchorage E have been changed from those listed in the NPRM. The actual aids to navigation cited in the NPRM are correct and form the boundary of the anchorage. This change merely corrects the coordinates of the aids and has no regulatory effect.

Regulated Area

A regulated area in Portland Harbor will be in effect from 11 a.m. to 4 p.m. on July 28, 2000. This regulated area is needed to protect the maritime public and participating vessels from possible hazards to navigation associated with a parade of tall ships transiting the waters of Portland Outer Harbor into port, and a large number of spectator craft anchored in close proximity throughout the duration of these events. This regulated area includes vessel anchoring and operating restrictions, including the restriction of vessel movement within the area. This Regulated Area covers the waters of Portland Outer Harbor, Main Harbor and vicinity. It includes the following temporary anchorages established under 33 CFR § 110.T136 created under this rule: Anchorage B, Anchorage C, Spectator Anchorage D along the east shore of South Portland, and Spectator Anchorage E off the southeast shore of Cushing Island. Following the tall ship parade, Portland Harbor will reopen in sequence with the movement and mooring of the final flotilla of tall ships. After the final flotilla of tall ships has passed Anchorage B, vessel operators anchored in the anchorage areas may depart for locations outside Portland Harbor. This regulated area is effective from 11 a.m. until 4 p.m. on July 28, 2000.

Anchorage Regulations

The Coast Guard has established temporary Anchorage Regulations for participating OPSAIL MAINE 2000 ships and spectator craft. The Anchorage regulations in 33 CFR § 110.132 are temporarily suspended by this regulation and new Anchorage Grounds and regulations are temporarily established.

The anchorage regulations temporarily establish Anchorage Grounds for spectator vessel use only. They restrict all other vessels from using these Anchorage Grounds during a portion of the OPSAIL MAINE 2000 event. Anchorage B will contain the official reviewing vessel. Anchorage C is designated for small vessel temporary anchorages. Additionally, Spectator Anchorage D is designated along the eastern shore of South Portland in the Outer Harbor, and Spectator Anchorage E is designated on the southeast shore of Cushing Island. These anchorages are needed to provide viewing areas for spectator vessels while maintaining a clear parade route for the participating OPSAIL MAINE 2000 vessels and to protect boaters and spectator vessels from the hazards associated with a parade of tall ships transiting in close proximity in the waters of Portland Harbor. These regulations are effective from 11 a.m. until 4 p.m. on July 28, 2000.

Safety Zones

The Coast Guard has established a safety zone in Portland Harbor for a fireworks display, that will be in effect on July 28, 2000. In the case of inclement weather, the fireworks display will be held on either July 29 or 30, 2000 and the safety zone would be in effect on one of those dates. The safety zone is needed to protect the maritime public from possible hazards associated with the launching of fireworks in Portland Harbor. The safety zone covers a 1500-foot radius around a barge located in Anchorage A used for the fireworks display. This regulation is in effect from 9 p.m. until 11 p.m. on July 28-30, 2000.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

Due to the short duration of these marine events and fireworks events, the limited areas and the advance notice provided to the maritime community, the Coast Guard expects the economic impact of this regulation to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of the Department of Transportation is unnecessary.

The primary impact of this rule will be on vessels wishing to transit the affected waterways during the Parade of Sail on July 28, 2000. Although this rule prevents traffic from transiting a portion of Portland Harbor, that restriction is limited in duration, affects only a limited area and has been will publicized, allowing mariners to make alternative plans for operating in the affected area. Moreover, the magnitude of the event itself would hamper or prevent normal transit of the waterway, even absent these regulations, which are designed to ensure the Parade is conducted in a safe and orderly fashion.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule will 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.

Because it expects the impact of this rule to be so minimal, the Coast Guard certifies under section 601(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 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 might be small entities: the owners or operators of vessels intending to operate in portions of Portland Harbor. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: the restrictions are of limited duration, affect only limited areas, and have been well publicized and coordinated, allowing affected mariners to make alternative plans for operating in the area.

Assistance for Small Entities

In accordance with Sec. 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking process. No requests for assistance in understanding this rule were received.

Small businesses may send comments on the actions of the 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).

Collection of Information

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

We have analyzed this rule under E.O. 13132 and determined that this rule does not have implications for federalism under that Order.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate.

Taking of Private Property

This rule would not effect a taking of private property or otherwise have taking implications under E.O. 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 E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Environment

We have considered the environmental impact of this rule and concluded that, under Figure 2-1, paragraph 34 (f), (g) and (h), of Commandant Instruction M16475.1C, it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects

33 CFR Part 100

• Marine safety
• Navigation (water)
• Reporting and record keeping requirements
• Waterways

33 CFR Part 110

• Anchorage grounds

33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and record keeping requirements
• Security measures
• Waterways

For the reasons discussed in the preamble, the Coast Guard will amend 33 CFR Parts 100, 110, and 165 as follows:

PART 100—MARINE EVENTS

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

Authority: 33 U.S.C. 1233 through 1236; 49 CFR 1.46; 33 CFR 100.35.

2. Add Temporary § 100.35 T-01-194 to read as follows:

PART 110—ANCHORAGE GROUNDS

3. The authority citizen for Part 110 continues to read as follows:

Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035, 2071; 49 CFR 1.46 and 33 CFR 1.05-1(g).

4. From July 28 through July 30, 2000 § 110.32 is suspended and new § 110.T01-136 is added as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS.

5. The authority citation for Part 165 continues to read:

Authority: 33 U.S.C. 1225 and 1231; 50 U.S.C. 191; 49 CFR 1.46 and 33 CFR 1.05-1(G), 6.04-1, 6.04-6, and 160.5.

6. Add new § 165.T01-195 to read as follows: