
[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Rules and Regulations]
[Pages 40518-40521]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16784]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2011-1000]
RIN 1625-AA00


Swim Events in the Captain of the Port New York Zone; Hudson 
River, East River, Upper New York Bay, Lower New York Bay; New York, NY

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing seven temporary safety zones 
for swim events within the Captain of the Port (COTP) New York Zone. 
These zones will be established on the navigable waters of the Hudson 
River, East River, Upper New York Bay and Lower New York Bay. These 
temporary safety zones are necessary to protect the maritime public and 
event participants from the hazards associated with these events. 
Persons and vessels are prohibited from entering into, transiting 
through, mooring, or anchoring within the safety zones unless 
authorized by the COTP New York or the designated representative.

DATES: This rule is effective in the Federal Register from August 9, 
2012 through September 16, 2012. This rule will be effective with 
actual notice for enforcement purposes from June 16, 2012, through 
August 9, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2011-1000]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Ensign Kimberly Farnsworth, Coast Guard; telephone (718) 
354-4163, email Kimberly.A.Farnsworth@uscg.mil. 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:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port

A. Regulatory History and Information

    On April 16, 2012, we published a notice of proposed rulemaking 
(NPRM) entitled Swim Events in the Captain of the Port New York Zone in 
the Federal Register (77 FR 22525). We received no comments on the 
proposed rule. No public meeting was requested and none was held.
    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. The NYC Triathlon Swim Clinic and 
the Iron Man Open Water Swim Clinics are scheduled to occur on June 16 
and June 30, 2012, respectively. These two events will occur before 30 
days has elapsed after the publication of the rule. The event sponsors 
are unable and unwilling to postpone these events because the dates of 
these events were chosen based on optimal tide, current, and weather 
conditions needed to promote the safety of swim participants. In 
addition, any change to the dates of the events would cause economic 
hardship on the marine event sponsors and negatively impact other 
activities being held in conjunction with these events, such as 
potentially causing numerous event participant cancellations.

B. Basis and Purpose

    The legal basis for the rule is 33 U.S.C. 1231, 46 U.S.C. Chapter 
701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 
160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland 
Security Delegation No. 0170.1, which collectively authorize the Coast 
Guard to define regulatory safety zones.
    Marine events are frequently held on the navigable waters within 
the COTP Sector New York Zone. The COTP has determined that swim events 
in close proximity to marine traffic pose significant risk to public 
safety and property. The combination of increased numbers of recreation 
vessels, congested waterways, and large numbers of swimmers in the 
water has the potential to result in serious injuries or fatalities. In 
order to protect the safety of all waterway users including event 
participants and spectators, this rule establishes temporary safety 
zones for the duration of each event.
    This rule prevents vessels from entering into, transiting through, 
mooring or anchoring within the areas specifically designated as 
regulated areas during the periods of enforcement unless authorized by 
the COTP, or the designated representative.

C. Discussion of Comments, Changes and the Final Rule

    No comments were received. The Coast Guard made the following 
changes to this final rule that were not published in the NPRM:
    The swim events listed in TABLE 1 of 165.T01-1000 were modified to 
now include rain dates. Rain dates are now included for the following 
events: Iron Man Open Water Swim Clinics, Verrazano Bridge Swim, Rose 
Pitonof Swim, and Liberty to Freedom Swim. The sponsors advised that 
due to the limited reliability of weather forecast and predictions it 
was necessary to have rain dates in the event of unexpected adverse 
weather conditions.
    In the NPRM, the Coast Guard proposed under Sec. 165.T01-1000(g) 
the following: ``For all swim events listed in TABLE 1 to Sec.  
165.T01-1000, vessels not associated with the event shall maintain a 
separation of at least 100 yards from the participants.'' The text in 
Sec. 165.T01-1000(g) now reads as follows: ``For all swim events listed 
in the TABLE to Sec.  165.T01-1000, vessels not associated with the 
event that are permitted to enter the regulated areas in accordance 
with section (c), shall maintain a separation of at least 100 yards 
from the participants.'' We revised the text to help the public better 
understand our intentions and eliminate any confusion that the 
regulated areas listed in TABLE 1 of 165.T01-1000 are geographically 
fixed. The requirement for separation of at least 100 yards from each 
event participant is applicable to vessels that receive permission from 
the COTP to enter the regulated areas.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking.

[[Page 40519]]

Below we summarize our analyses based on 13 of these statutes or 
executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The Coast Guard's implementation of these temporary safety zones 
will be of short duration and designed to minimize the impact to vessel 
traffic on the navigable waters. These safety zones will only be 
enforced for a short duration. Furthermore, vessels may be authorized 
to transit the zones with permission of the COTP New York or designated 
representative.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The Coast Guard 
received no comments from the Small Business Administration on this 
rule. 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 zones as listed in TABLE 1 
of 165.T01-1000 during the enforcement period of each swim event.
    These safety zones will not have significant economic impact on a 
substantial number of small entities for the following reasons: Vessels 
will only be restricted from safety zone areas for a short duration of 
time; vessels may transit in portions of the affected waterway except 
for those areas covered by the regulated areas as listed in TABLE 1 of 
165.T01-1000. Notifications will be made to the local maritime 
community through the Local Notice to Mariners and Broadcast Notice to 
Mariners well in advance of the events.

3. 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 rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INTFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
that 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 involves the establishment of seven temporary 
safety

[[Page 40520]]

zones on the navigable waters of the Hudson River, East River, Upper 
New York Bay and Lower New York Bay. Persons and vessels are prohibited 
from entering into, transiting through, mooring, or anchoring within 
the safety zones unless authorized by the COTP. This rule is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist supporting this determination and a Categorical Exclusion 
Determination are available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1, which authorizes the Coast Guard to define Safety Zone 
Regulations.


0
2. Add Sec.  165.T01-1000 to read as follows:


Sec.  165.T01-1000  Swim Events in the Captain of the Port New York 
Zone, Hudson River, East River, Upper New York Bay, Lower New York Bay, 
New York, NY.

    (a) Regulation. The general regulations contained in 33 CFR 165.23 
as well as the following regulations apply to the swim events listed in 
the TABLE of 165.T01-1000. These regulations will be enforced for the 
duration of each swim event. Notifications of exact dates and times of 
the enforcement period will be made to the local maritime community 
through the Local Notice to Mariners, and Broadcast Notice to Mariners. 
First Coast Guard District Local Notice to Mariners can be found at 
http://www.navcen.uscg.gov/.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the Captain of the Port (COTP) 
New York Zone to act on his or her behalf.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP. The designated representative 
may be on an official patrol vessel or may be on shore and will 
communicate with vessels via VHF-FM radio or loudhailer. In addition, 
members of the Coast Guard Auxiliary may be present to inform vessel 
operators of this regulation.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Vessel operators desiring to enter or operate within the 
regulated areas shall contact the COTP or the designated representative 
via VHF channel 16 or 718-354-4353 (Sector New York command center) to 
obtain permission to do so.
    (d) Spectators or other vessels shall not anchor, block, loiter 
within, or impede the transit of event participants or official patrol 
vessels in the regulated areas during the effective dates and times, or 
dates and times as modified through the Local Notice to Mariners, 
unless authorized by COTP or the designated representative.
    (e) Upon being hailed by a U.S. Coast Guard vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed. Failure to 
comply with a lawful direction may result in expulsion from the area, 
citation for failure to comply, or both.
    (f) The COTP or the designated representative may delay or 
terminate any marine event in this subpart at any time it is deemed 
necessary to ensure the safety of life or property.
    (g) For all swim events listed in the TABLE to Sec.  165.T01-1000, 
vessels not associated with the event that are permitted to enter the 
regulated areas in accordance with section (c), shall maintain a 
separation of at least 100 yards from the participants.

                     Table 1 to Sec.   165.T01-1000
------------------------------------------------------------------------
 
------------------------------------------------------------------------
1.0                                                Hudson River
------------------------------------------------------------------------
1.1 Iron Man Open Water Swim Clinics...   Date: June 30 and July
                                          14, 2012.
                                          Rain Date: July 1 and
                                          July 15, 2012.
                                          Enforcement Period:
                                          8:00 a.m. to 10:30 a.m.
                                          Location site: All
                                          waters of the Hudson River in
                                          the vicinity of Ross Docks
                                          Camp Ground, bound by the
                                          following points:
                                          40[deg]51'41'' N,
                                          073[deg]57'13'' W; thence to
                                          40[deg]51'41'' N,
                                          074[deg]56'12'' W; thence to
                                          40[deg]54'00'' N,
                                          073[deg]54'57'' W; thence to
                                          40[deg]54'00.0'' N,
                                          073[deg]56'06'' W; thence
                                          along the shoreline to the
                                          point of origin.
1.2 NYC Triathlon Swim Clinic..........   Date: June 17, 2012.
                                          Rain Date: June 16 or
                                          June 24, 2012.
                                          Enforcement Period:
                                          10:00 a.m. to 11:30 a.m.
                                          Location: All waters
                                          of the Hudson River in the
                                          vicinity of Ross Docks Camp
                                          Ground, bound by the following
                                          points: 40[deg]48'0.15'' N,
                                          073[deg]58'30.59'' W; thence
                                          to 40[deg]48'19.17'' N,
                                          073[deg]59'9.76'' W; thence to
                                          40[deg]47'33.29'' N,
                                          073[deg]59'43.51'' W; thence
                                          to 40[deg]47'12.76'' N,
                                          073[deg]59'3.87'' W thence
                                          along the shoreline to the
                                          point of origin.
------------------------------------------------------------------------
2.0                                             Lower New York Bay
------------------------------------------------------------------------
2.1 Verrazano Bridge Swim..............   Date: July 21, 2012.
                                          Rain Date: July 22,
                                          2012.
                                          Enforcement Period:
                                          12:30 p.m. to 1:30 p.m.

[[Page 40521]]

 
                                          Location: All waters
                                          of the Lower New York Bay in
                                          the vicinity of the Verrazano
                                          Bridge, bound by the following
                                          points: 40[deg]36'12.74'' N,
                                          074[deg]3'12.92'' W; thence to
                                          40[deg]35'59.20'' N,
                                          074[deg]3'8.72'' W; thence to
                                          40[deg]36'27.30'' N,
                                          074[deg]2'3.101'' W; thence to
                                          40[deg]36'32.91'' N,
                                          074[deg]2'9.30'' W; thence
                                          along the shoreline to the
                                          point of origin.
------------------------------------------------------------------------
3.0                                      East River, Upper New York Bay,
                                                Lower New York Bay
------------------------------------------------------------------------
3.1 Rose Pitonof Swim..................   Date: August 18, 2012.
                                          Rain Date: August 19,
                                          2012.
                                          Enforcement Period:
                                          9:00 a.m. to 5:00 p.m.
                                          Location: All waters
                                          of the East River, Upper and
                                          Lower New York Bays, bound by
                                          the following points:
                                          40[deg]44'11.55'' N,
                                          073[deg]58'21.58'' W; thence
                                          to 40[deg]44'19.63'' N,
                                          073[deg]57'45.25'' W; thence
                                          to 40[deg]34'10.43'' N,
                                          073[deg]58'59.88'' W; thence
                                          to 40[deg]32'16.62'' N,
                                          074[deg]2'34.30'' W; thence to
                                          40[deg]36'13.95'' N,
                                          074[deg]3'8.58'' W; thence to
                                          40[deg]38'38.81 N,
                                          074[deg]4'15.14'' W; thence
                                          back to the point of origin.
------------------------------------------------------------------------
4.0                                         Upper New York Bay, Hudson
                                                       River
------------------------------------------------------------------------
4.1 Liberty to Freedom Swim............   Date: September 15,
                                          2012.
                                          Rain Date: September
                                          16, 2012.
                                          Enforcement Period:
                                          3:00 p.m. to 5:00 p.m.
                                          Location: All waters
                                          of the East River, Upper and
                                          Lower New York Bays, bound by
                                          the following points:
                                          40[deg]41'24.15'' N,
                                          074[deg]2'33.47'' W; thence to
                                          40[deg]41'35.25'' N,
                                          074[deg]1'10.95'' W; thence to
                                          40[deg]42'48.91'' N,
                                          074[deg]1'3.44'' W; thence to
                                          40[deg]43'0.17'' N,
                                          074[deg]1'47.99'' W; thence to
                                          40[deg]41'27.55'' N,
                                          074[deg]2'49.72'' W; thence
                                          back to the point of origin.
------------------------------------------------------------------------
5.0                                         Upper New York Bay, Hudson
                                                       River
------------------------------------------------------------------------
5.1 Brooklyn Bridge Swim...............   Date: July 15, 2012.
                                          Rain Date: NA.
                                          Enforcement Period:
                                          7:15 a.m. to 9:15 a.m.
                                          Location: All waters
                                          of the East River, bound by
                                          the following points:
                                          40[deg]42'17.04'' N,
                                          073[deg]59'21.87'' W; thence
                                          to 40[deg]42'12.03'' N,
                                          073[deg]59'46.17'' W; thence
                                          to 40[deg]42'24.48'' N,
                                          074[deg]0'4.09'' W; thence to
                                          40[deg]42'34.19 N,
                                          073[deg]59'31.41'' W; thence
                                          back to point of origin.
------------------------------------------------------------------------
6.0                                       Upper New York Bay, Lower New
                                                     York Bay
------------------------------------------------------------------------
6.1 Ederle Swim........................   Date: August 18, 2012.
                                          Rain Date: August 19,
                                          2012.
                                          Enforcement Period:
                                          10:00 a.m. to 7:30 p.m.
                                          Location: All waters
                                          of the Hudson River, Upper and
                                          Lower New York Bays, bound by
                                          the following points:
                                          40[deg]42'48.13'' N,
                                          074[deg]0'58.74'' W; thence to
                                          40[deg]42'3.20'' N,
                                          073[deg]59'54.84'' W; thence
                                          to 40[deg]36'32.70'' N,
                                          074[deg]2'10.73'' W; thence to
                                          40[deg]28'4.43 N,
                                          073[deg]59'38.14'' W; thence
                                          to 40[deg]28'41.58'' N,
                                          074[deg]0'55.27'' W; thence to
                                          40[deg]38'38.77'' N,
                                          074[deg]4'15.05'' W; thence to
                                          40[deg]43'0.31'' N,
                                          074[deg]1'48.11'' W thence
                                          back to point of origin.
------------------------------------------------------------------------


    Dated: June 12, 2012.
G.P. Hitchen,
Captain, U.S. Coast Guard, Acting Captain of the Port New York.
[FR Doc. 2012-16784 Filed 7-9-12; 8:45 am]
BILLING CODE 9110-04-P


