[Federal Register Volume 75, Number 165 (Thursday, August 26, 2010)]
[Rules and Regulations]
[Pages 52465-52467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21311]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2010-0502]
RIN 1625-AA00
Safety Zones; Swim Events Within the Sector New York Captain of
the Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing five temporary safety zones
for swim events occurring on waters of the Hudson River, East River and
Long Island Sound. These temporary safety zones are necessary to
protect swimmers, spectators and vessels from the hazards associated
with the swim events. Persons and vessels are prohibited from entering
into, transiting through, or anchoring within the safety zones unless
authorized by the Captain of the Port New York or designated
representative.
DATES: This rule is effective in the CFR on August 26, 2010 through
11:59 p.m. on September 12, 2010. This rule is effective with actual
notice for purposes of enforcement beginning at 03:30 a.m. on July 24,
2010.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2010-0502 and are available online
by going to http://www.regulations.gov, inserting USCG-2010-0526 in the
``Keyword'' box, and then clicking ``Search.'' 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. 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 LTJG Eunice James, Coast Guard Sector
New York Waterways Management Division; 718-354-4163, e-mail
[email protected]. 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 publishing an NPRM is impractical as
the Coast Guard did not receive notification of the specific location
or planned dates for the events in sufficient time to issue an NPRM
without delaying this rule making. A delay or cancellation of the
events in order to allow for a notice and comment period is contrary to
the public interest in having these events occur on schedule. For the
same reasons, 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. In addition to the reasons stated
above, this rule is intended to ensure the safety of the event
participants, spectators and other waterway users; thus any delay in
the rule's effective date would be impractical.
Basis and Purpose
These temporary safety zones are necessary to ensure the safety of
participants, vessels and spectators from hazards associated with the
swimming events and the inherent nature of a large number of swimmers,
kayaks, and recreation vessels in the water. Swim events have the
potential to result in serious injuries or fatalities. These temporary
safety zones are intended to restrict vessels entering the area around
the participants to reduce the risk while the swimmers are in the
water.
Discussion of Rule
Several organizations are sponsoring swimming events within the
waters of the Sector New York Captain of the Port Zone, including the
Hudson River, the East River and Long Island Sound. The swim events
consist of a large number of swimmers, and paddlers crossing the
navigable channels.
These events pose significant risks to participants, spectators and
the boating public because of the large number of swimmers, kayakers,
and recreational vessels that are expected in the area of the event.
The temporary safety zones are necessary to ensure the safety of
participants, spectators and vessels from the hazards associated with
the swim events.
[[Page 52466]]
This rule establishes the following temporary safety zones:
(1) A 100-yard radius around the participants of the Swim Across
America swim event on the waters of Long Island Sound in the vicinity
of Glen Cove, NY and Larchmont, NY.
(2) A 100-yard radius around the participants of Newburgh to Beacon
Swim event in the vicinity of Newburgh, NY.
(3) A 100-yard radius around the participants of the Brooklyn
Bridge Swim, a swim event on the waters of the East River in the
vicinity of Brooklyn, NY.
(4) A 100-yard radius around the participants of the Hudson River
Swim for Life, a swim event on the waters of the Hudson River in the
vicinity of Nyack, NY and Sleepy Hollow, NY.
(5) A 100-yard radius around the participants of the Toughman Half
Triathlon, a swim event on the waters of the Hudson River in the
vicinity of Croton Point Park, NY.
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's implementation of these temporary safety zones
will be of short duration and designed to minimize the impact on
navigable waters. These safety zones will be of limited duration, and
they cover only a small portion of the navigable waterways.
Furthermore, vessels may be authorized to transit the zones with
permission of the Captain of the Port New York or designated
representative.
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 and operators of vessels intending to
transit or anchor in the designated safety zone during the enforcement
period of the named swim events.
The safety zones will not have a significant economic impact on a
substantial number of small entities for the following reasons: Vessel
traffic can safely transit around the zones. Before the effective
period, the Coast Guard will issue notice of the time and location of
each safety zone through the Local Notice to Mariners and Broadcast
Notice to Mariners.
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 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such expenditure, we do discuss the effects of this rule elsewhere in
this preamble.
Taking of Private Property
This rule will not cause 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
[[Page 52467]]
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, the Coast
Guard 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 as this rule involves establishing safety
zones. 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, and Waterways.
0
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
0
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; Pub. L. 107-295, 116 Stat. 2064;
Department of Homeland Security Delegation No. 0170.1.
0
2. Add a new temporary safety zones Sec. 165.T01-0502 to read as
follows:
Sec. 165.T01-0502 Safety Zones; Swim Events within the Sector New
York Captain of the Port Zone.
(a) Location. The following swim events include safety zones as
described herein:
(1) Swim Across America 2010 LIS Swim, Glen Cove, NY to Larchmont,
NY.
(i) All waters of Long Island Sound, from surface to bottom, within
100-yard radius around the swimmers swimming from Morgan Park Beach,
Glen Cove, NY to Larchmont Shore Club, Larchmont, NY.
(ii) Effective Date. This rule will be effective from 5:30 a.m.
through 10:30 p.m. on July 24, 2010 and August 14, 2010.
(2) Newburgh to Beacon Swim, Newburgh, NY to Beacon, NY.
(i) All waters of the Hudson River from surface to bottom, within a
100-yard radius around the swimmers swimming from the waterfront at
Newburgh, NY to the waterfront at Beacon, NY.
(ii) Effective Date. This rule will be effective from 11:30 a.m. to
1:30 p.m. on July 31, 2010.
(3) Brooklyn Bridge Swim, Brooklyn, NY.
(i) All waters of the East River from surface to bottom, within a
100-yard radius around the swimmers swimming in the waters of the East
River from Brooklyn Bridge Park to East River Park, Brooklyn.
(ii) Effective Date. This rule will be effective from 11:45 a.m. to
1:30 p.m. on September 11, 2010.
(4) Hudson River Swim for Life, Nyack, NY to Sleepy Hollow, NY.
(i) All waters of the Hudson River from surface to bottom, within a
100-yard radius around the swimmers swimming from Nyack, NY to
Kingsland Point Park, Sleepy Hollow, NY.
(ii) Effective Date. This rule will be effective from 9 a.m. to
12:30 p.m. on September 12, 2010.
(5) Toughman Half Iron Triathlon, Hudson River, Croton Point Park,
NY.
(i) All waters of the Hudson River from surface to bottom, within a
100-yard radius around the swimmers swimming in the vicinity of
Haverstraw Bay, Croton Point Park, Westchester County, NY.
(ii) Effective Date. This rule will be effective from 6 a.m. to 10
a.m. on September 12, 2010.
(b) Definitions. The following definition applies to this section:
Designated representative means any commissioned, warrant and petty
officers of the Coast Guard on board Coast Guard, Coast Guard
Auxiliary, and local, State, and Federal law enforcement vessels that
have been authorized to act on behalf of the Captain of the Port New
York.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23 of this part, entry into, transit through or anchoring
within the safety zones is prohibited unless authorized by the Captain
of the Port New York or a designated representative. Persons desiring
to transit within any of the safety zones established in this section
may contact the Captain of the Port at telephone number 718-354-4398 or
via on-scene patrol personnel on VHF channel 16 to seek authorization.
If permission is granted, all persons and vessels must comply with
the instructions of the Captain of the Port New York or the designated
representative.
(d) Enforcement period. This section will be enforced from 3:30
a.m. to 11:59 p.m. on various dates from July 24 to September 12, 2010.
Dated: July 22, 2010.
G.P. Hitchen,
Captain, U.S. Coast Guard, Acting, Captain of the Port New York.
[FR Doc. 2010-21311 Filed 8-25-10; 8:45 am]
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