
[Federal Register: June 18, 2010 (Volume 75, Number 117)]
[Rules and Regulations]               
[Page 34634-34636]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn10-7]                         

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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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. This special local regulation is 
necessary to provide for the safety of life by protecting swimmers and 
their safety craft from the hazards imposed by marine traffic. 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 July 19, 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-2009-0395 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-0395 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 Petty Officer Joseph Graun, Prevention Department, USCG 
Sector Long Island Sound at 203-468-4454, joseph.l.graun@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 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).
    On April 2, 2010, the Coast Guard published a supplemental notice 
of proposed rulemaking (SNPRM) entitled: Special Local Regulation, Swim 
Across the Sound, Long Island Sound, Port Jefferson, NY to Captain's 
Cove Seaport, Bridgeport, CT in the Federal Register (75 FR 16700). The 
Coast Guard received no comments or requests for meetings on the 
proposed rule.

Basis and Purpose

    Swim Across the Sound is a 25 km swim that 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. Prior to this rule there was 
not a permanent regulation in place to protect the swimmers or safety 
craft from the hazards imposed by marine traffic. To provide for the 
safety of life, the Coast Guard is establishing a permanent special 
local regulation on the navigable waters of Long Island Sound that 
excludes all unauthorized persons and vessels from approaching within 
100 yards of any swimmer or safety craft on the race course. This 
section will be enforced from 8:30 a.m. to 7:30 p.m. on August 7, 2010 
and thereafter annually on a single, specified Saturday in either July 
or August. Notification of the exact dates will be announced in the 
Federal Register, via a Notice of Enforcement, and separate Marine 
Broadcasts and a local notice to mariners.

Background

    On July 21, 2009, the notice of proposed rulemaking's regulated 
area encompassed 100 yards around the race course for the duration of 
the race. This provided safety of life for swimmers and safety craft, 
but any vessel transiting through Long Island Sound would have to pass 
through the regulated area, putting a burden on vessel traffic. Due to 
the length of the race course, participants will only be occupying a 
small portion of the course at any given time. This regulated area, was 
considered but was not chosen due to its burden on vessel traffic.
    On April 2, 2010, the Coast Guard published a supplemental notice 
of proposed rulemaking (SNPRM) entitled: Special Local Regulation, Swim 
Across the Sound, Long Island Sound, Port Jefferson, NY to Captain's 
Cove Seaport, Bridgeport, CT in the Federal Register

[[Page 34635]]

(75 FR 16700). This notice proposed a 100-yard regulated area that 
encompasses the swimmers and safety craft moving with them as they 
travel the race course. This moving regulated area provides protection 
for swimmers and safety craft, with a much smaller regulated area. It 
allows vessels to pass through the race course as long as they stay 
clear of the swimmers and safety craft, reducing the burden on vessel 
traffic. This proposal was chosen because it provides the same amount 
of safety as the previously proposed regulated area while being less of 
a burden on vessel traffic.

Discussion of Comments and Changes

    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. A 
supplemental notice of proposed rulemaking with request for comments 
was then published to provide clarification of the regulatory text and 
minimize the regulated area.
    The changes in the text redefined the regulated area from 100 yards 
of the race course to 100 yards from any swimmer or safety craft so 
that it 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.

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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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 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

[[Page 34636]]

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. 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
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

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

    Authority: 33 U.S.C. 1233.


0
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]58'11.71'' N 073[deg]05'51.12'' W, 
north-westerly to the finishing point at Captain's Cove Seaport at 
approximate location 41[deg]09'25.07'' N 073[deg]12'47.82'' W.
    (b) Definitions. The following definition applies to this section: 
Designated On-scene Patrol Personnel, 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 on August 7, 2010 and 
thereafter 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: June 3, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. 2010-14719 Filed 6-17-10; 8:45 am]
BILLING CODE 9110-04-P

