[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Proposed Rules]
[Pages 16700-16703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7429]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 100
[Docket No. USCG-2009-0395]
RIN 1625-AA08
Special Local Regulation, Swim Across the Sound, Long Island
Sound, Port Jefferson, NY to Captain's Cove Seaport, Bridgeport, CT
AGENCY: Coast Guard, DHS.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: This document supplements the Coast Guard's July 21, 2009
proposal to establish a permanent Special Local Regulation on the
navigable waters of Long Island Sound between Port Jefferson, NY and
Captain's Cove Seaport, Bridgeport, CT due to the annual Swim Across
the Sound event. The proposed amendment is necessary to provide for the
safety of life by protecting swimmers and their safety craft from the
hazards imposed by marine traffic. This supplemental notice of proposed
rulemaking describes an amendment to the list of potential dates and
clarifies the limitations placed on marine traffic.
DATES: Comments and related material must be received by the Coast
Guard on or before May 3, 2010.
ADDRESSES: You may submit comments identified by docket number USCG-
2009-0395 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) 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.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or e-mail: Chief Petty Officer Christie Dixon, Prevention
Department, USCG Sector Long Island Sound at 203-468-4459, e-mail
[email protected]. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
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.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2009-0395), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via http://www.regulations.gov, it will be considered
received by the Coast Guard when you successfully transmit the comment.
If you fax, hand deliver, or mail your comment, it will be considered
as having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an e-mail address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2009-0395'' in the Docket ID box, press Enter,
and then click on the balloon shape in the Actions column. If you
submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8[frac12] by 11 inches, suitable for
copying and electronic filing. If you submit comments 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 and may change the rule
based on your comments.
[[Page 16701]]
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,
select the Advanced Docket Search option on the right side of the
screen, insert USCG-2009-0395 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. You may also visit the
Docket Management Facility in Room W12-140 on the ground floor of the
Department of Transportation West Building, 1200 New Jersey Avenue,
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.
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).
Public Meeting
We do not plan to hold a public meeting. But you may submit a
request for one using one of the four methods specified under
ADDRESSES. Please explain why you believe a public meeting 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
The Swim Across the Sound has been successfully held for over
twenty years on the waters of Long Island Sound between Port Jefferson,
NY and Bridgeport, CT. This 25km swim has historically involved over
200 swimmers and accompanying safety craft. The swim course is located
directly northwest of Port Jefferson, NY and extends to Captain's Cove
Seaport, Bridgeport, CT. Currently there is no regulation in place to
protect the swimmers or safety craft from the hazards imposed by marine
traffic.
On July 21, 2009 the Coast Guard published a Notice of Proposed
Rulemaking with request for comments titled, ``Special Local
Regulation, Swim Across the Sound, Long Island Sound, Port Jefferson,
NY to Captain's Cove Seaport, Bridgeport, CT'' (Docket number USCG-
2009-0395) in the Federal Register (74 FR 35834). No comments or
requests for meetings were received, however, during the final edits of
the Final Rule we realized that the description of the regulated area
was incorrect and needed clarification, and that the anticipated dates
for the event should include the last weekend in July. This
supplemental notice of proposed rulemaking clarifies the proposed
regulation and the proposed dates for the annual event. The new
proposed regulation creates less of a burden on vessel traffic by
minimizing the restrictions in the regulated area.
Discussion of Proposed Rule
The Coast Guard proposes to establish a permanent special local
regulation on the navigable waters of Long Island Sound that would
exclude all unauthorized persons and vessels from approaching within
100 yards of any swimmer or safety craft on the race course. The race
course, hereby referred to as the regulated area, is bounded by the
following approximate points: Starting Point of Port Jefferson Beach
40[deg]58'13'' N 073[deg]05'51'' W, northwesterly to the finishing
point at Captain's Cove Seaport at approximate position 41[deg]09'25''
N 073[deg]12'48'' W.
The duration of the event, and thus the enforcement period of the
special local regulation, is generally from 8:30 a.m. to 7:30 p.m. on
the day of the race. The special local regulation will only be enforced
for approximately 11 hours on the day of the race, normally held on a
single Saturday during the last weekend of July or the first two
weekends of August, depending on the tides.
During the enforcement period of this regulation no person or
vessel may approach or remain within 100 yards of any swimmer or safety
craft within the regulated area unless they are officially
participating in the Swim Across the Sound event or are otherwise
authorized by the Captain of the Port Long Island Sound or Designated
On-scene Patrol Personnel. Notification of the race date and subsequent
enforcement of the special local regulation will be made via a Notice
of Enforcement in the Federal Register, marine broadcasts and broadcast
notice to mariners. Any violation of the special local regulation
described herein is punishable by, among others, civil and criminal
penalties, in rem liability against the offending vessel, and license
sanctions.
Regulatory Analyses
We developed this proposed 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 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. This
regulation may have some impact on the public, but any potential impact
would be minimized for the following reasons: Marine traffic may
transit in all areas of Long Island Sound, other than within 100 yards
of event participants within the regulated area. Marine traffic passing
through the regulated area would only have minimal increased transit
time and the special local regulation will only be enforced for
approximately 11 hours on a single specified Saturday in either July or
August, made publicly known in advance of the scheduled event.
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 that 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 may affect the
following entities, some of which may be small entities: The owners or
operators of vessels intending to transit in those portions of Long
Island Sound covered by the special local regulation. Before the
activation of the zone, we would issue maritime advisories in advance
of the event and make them widely available to users of the waterway.
For the reasons outlined in the Regulatory Evaluation section above,
this rule will not have a significant impact on a substantial number of
small entities.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it
[[Page 16702]]
qualifies and how and to what degree this 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
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact: Chief Petty Officer Christie
Dixon, Prevention Department, USCG Sector Long Island Sound at 203-468-
4459, [email protected]. 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 would call 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
(adjusted for inflation) in any one year. Though this proposed rule
would not result in such expenditure, we do discuss the effects of this
rule elsewhere in this preamble.
Taking of Private Property
This proposed rule would not affect 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 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 rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 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 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 made a preliminary determination that this action is one of a
category of actions which do not individually or cumulatively have a
significant effect on the human environment. A preliminary
environmental analysis checklist supporting this determination is
available in the docket where indicated under ADDRESSES. This proposed
rule involves the promulgation of special local regulations in
conjunction with a permitted marine event and falls under the category
of actions under paragraph 34(h) of the instruction for which further
environmental analysis is not normally required. We seek any comments
or information that may lead to the discovery of a significant
environmental impact from this proposed rule.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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: 33 U.S.C. 1233.
2. Add Sec. 100.121 to read as follows:
Sec. 100.121: Swim Across the Sound, Long Island Sound, Port
Jefferson, NY to Captain's Cove Seaport, Bridgeport, CT.
(a) Regulated area. All navigable waters of Long Island Sound
within 100 yards of any swimmer or safety craft on the race course
bounded by the following points: Starting Point at Port Jefferson Beach
at approximate position 40[deg]58'12'' N 073[deg]05'51'' W, north-
westerly to the finishing point at Captain's Cove Seaport at
approximate location 41[deg]09'25'' N 073[deg]12'48'' W.
(b) Definitions. The following definition applies to this section:
Designated On-scene Patrol Personnel,
[[Page 16703]]
means any commissioned, warrant and petty officers of the U.S. Coast
Guard operating Coast Guard vessels who have been authorized to act on
the behalf of the Captain of the Port Long Island Sound.
(c) Special local regulations. (1) No person or vessel may approach
or remain within 100 yards of any swimmer or safety craft within the
regulated area during the enforcement period of this regulation unless
they are officially participating in the Swim Across the Sound event or
are otherwise authorized by the Captain of the Port Long Island Sound
or by Designated On-scene Patrol Personnel.
(2) All persons and vessels must comply with the instructions from
Coast Guard Captain of the Port or the Designated On-scene Patrol
Personnel. The Designated On-scene Patrol Personnel may delay, modify,
or cancel the swim event as conditions or circumstances require.
(3) Upon being hailed by a U.S. Coast Guard vessel by siren, radio,
flashing light or other means, the operator of the vessel must proceed
as directed.
(4) Persons and vessels desiring to enter the regulated area within
100 yards of a swimmer or safety craft may request permission to enter
from the designated on scene patrol personnel by contacting them on
VHF-16 or by a request to the Captain of the Port Long Island Sound via
phone at (203) 468-4401.
(d) Enforcement Period. This rule is enforced annually on a single
Saturday during the last weekend of July or one of the first two
weekends in August, depending on the tides. Notification of the
specific date and enforcement of the special local regulation will be
made via a Notice of Enforcement in the Federal Register, separate
marine broadcasts and local notice to mariners.
Dated: February 11, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. 2010-7429 Filed 4-1-10; 8:45 am]
BILLING CODE 9110-04-P