
[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]               
[Page 29891-29893]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my10-5]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2009-0302]
RIN 1625-AA08

 
Special Local Regulation; Maggie Fischer Memorial Great South Bay 
Cross Bay Swim, Great South Bay, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent special local 
regulation on Great South Bay, NY between Gilbert Park, Brightwaters, 
NY and Fire Island Lighthouse Dock, Fire Island, NY due to the annual 
Maggie Fischer Memorial Great South Bay Cross Bay Swim. This special 
local regulation is necessary to protect swimmers, safety vessels and 
the boating public on the navigable waters of Great South Bay, NY. 
Entry into this zone is prohibited unless authorized by the Captain of 
the Port Long Island Sound, New Haven, CT.

DATES: This rule is effective June 28, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2009-0302 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-0302 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call or e-mail: Chief Petty Officer Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, 
christie.m.dixon@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

    On July 8, 2009 we published an Interim Rule with a request for 
comments entitled, Special Local Regulation, Maggie Fischer Memorial 
Great South Bay Cross Bay Swim, Great South Bay, NY, in the Federal 
Register (74 FR 32428). We did not receive any comments or requests for 
meetings in response to the Interim Rule.

Basis and Purpose

    The Cross Bay Swim has been successfully held off and on from the 
early 1900's on the waters of Great South Bay, NY. This 5.25 mile swim 
has historically involved up to 100 swimmers and accompanying safety 
craft that travel along a course located directly north of the Fire 
Island Lighthouse Dock, NY and extending to Gilbert Park in 
Brightwaters, NY. Prior to this rule there was not a regulation in 
place to protect the swimmers or safety craft from the hazards imposed 
by marine traffic.
    To ensure the continued safety of the swimmers, safety craft and 
the boating public, the Coast Guard is establishing a permanent special 
local regulation on the navigable waters of the Great South Bay, New 
York that would exclude all unauthorized persons and vessels from 
approaching within 100 yards of any swimmer or safety craft on the race 
course from 6:30 a.m. to 12:30 p.m. on the day of the race.
    Entry into this zone is prohibited unless authorized by the Captain 
of the Port Long Island Sound or by designated on-scene patrol 
personnel. Any violation of the safety zone described herein is 
punishable by, among other things, civil and criminal penalties, in rem 
liability against the offending vessel, and the initiation of 
suspension or revocation proceedings against Coast

[[Page 29892]]

Guard-issued merchant mariner credentials.

Discussion of Comments and Changes

    A small number of changes are being made to minimize the size of 
the regulated area and reduce the burden on vessel traffic by 
minimizing the restrictions in the regulated area. Even though the 
bounds of the regulated area were discussed in the Small Entities 
section, and no comments were received, we are clarifying sections (a) 
and (c) to read as set forth in the regulatory text of this final rule.
    The changes in the text redefined the regulated area from ``within 
100 yards of the swim event race course'' to ``within 100 yards from 
each swimmer or safety craft on the swim event race course'' so the 
regulated area would not block the entire waterway. This will reduce 
the burden on vessels by allowing them to pass through the race course 
as long as they stay clear of the swimmers and safety craft.
    Also, paragraph (d) has been revised to provide the public 
additional notice of enforcement dates and times through publication of 
an advance notice each year in the Federal Register.

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.

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 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 Great South Bay, NY covered by the special 
local regulation. Although the safety zone would apply to the entire 
width of the bay, traffic would be allowed to pass through the zone, 
outside 100 yards of any swimmer or safety craft. Before the activation 
of the zone, we would issue maritime advisories widely available to 
users of the waterway. Additionally, the rule would only be in effect 
for a period of 6-7 hours for one day per year.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the Interim Rule we offered 
to assist small entities in understanding the rule so that they could 
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 an 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 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

[[Page 29893]]

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 that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(h), of 
the Instruction. This rule finalizes the establishment of a special 
local regulation that was published as an Interim Rule with an 
invitation to comment on July 8, 2009. No comments were received that 
would affect the assessment of environmental impacts from this action. 
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 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

0
Accordingly, the interim rule amending 33 CFR part 100, which was 
published at 74 FR 32428 on July 8, 2009, is adopted as a final rule 
with the following changes:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  33 U.S.C. 1233.


0
2. In Sec.  100.124, revise paragraphs (a), (c)(1), (c)(4), and (d) to 
read as follows:


Sec.  100.124  Maggie Fischer Memorial Great South Bay Cross Bay Swim, 
Great South Bay, New York.

    (a) Regulated area. All navigable waters of Great South Bay, NY 
within a 100 yard radius of each swimmer or safety craft on the swim 
event race course bounded by the following points: Starting Point at 
the Fire Island Lighthouse Dock in approximate position 40[deg]38'01'' 
N 073[deg]13'07'' W, northerly through approximate points 
40[deg]38'52'' N 073[deg]13'09'' W, 40[deg]39'40'' N 073[deg]13'30'' W, 
40[deg]40'30'' N 073[deg]14'00'' W, and finishing at Gilbert Park, 
Brightwaters, NY at approximate position 40[deg]42'25'' N 
073[deg]14'52'' W.
* * * * *
    (c) Special local regulation. (1) No person or vessel may enter, 
transit, 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 Maggie 
Fischer Memorial Great South Bay Cross Bay Swim event or are otherwise 
authorized by the Captain of the Port Long Island Sound or by 
designated on-scene patrol personnel.
* * * * *
    (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 on VHF-16 or the Captain 
of the Port, Long Island Sound via phone at (203) 468-4401.
    (d) Enforcement Period. This section will be enforced annually on a 
date to be determined each July. Public notification of the specific 
date and times of enforcement will be made each year via a Notice of 
Enforcement in the Federal Register, separate marine broadcasts and 
local notice to mariners.

    Dated: May 3, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. 2010-12844 Filed 5-27-10; 8:45 am]
BILLING CODE 9110-04-P

