
[Federal Register: August 26, 2010 (Volume 75, Number 165)]
[Rules and Regulations]               
[Page 52465-52467]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au10-13]                         

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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 
Eunice.A.James@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

    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]
BILLING CODE 9110-04-P

