[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Rules and Regulations]
[Pages 53769-53772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21717]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2012-0717]
RIN 1625-AA00
Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay
and Hudson River, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
navigable waters of Upper New York Bay, NY and the Lower Hudson River
for the September 5, 2012 and September 15, 2012 Liberty to Freedom
swim events. This temporary safety zone is necessary to protect the
maritime public and event participants from the hazards associated with
swim events. This rule is intended to restrict all vessels and persons
from entering into, transiting through, mooring, or anchoring within
the safety zone unless authorized by the Captain of the Port (COTP) New
York or a designated representative.
DATES: This rule is effective from 9:30 a.m. on September 5, 2012 until
5 p.m. on September 15, 2012. This rule will be enforced from 9:30 a.m.
until 11 a.m. on September 5, 2012 and from 3 p.m. until 5 p.m. on
September 15, 2012.
ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2012-0717. 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
[[Page 53770]]
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 LTJG Kristopher Kesting, Sector NY Waterways Management,
U.S. Coast Guard; Telephone (718) 354-4154, 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. 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
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 sufficient information about the
event was not received in time to publish a NPRM followed by a final
rule before the effective date, thus making the publication of a NPRM
impractical. The Coast Guard received the information about the events
on July 14, 2012. Any delay encountered in this regulation's effective
date by publishing a NPRM would be contrary to public interest, because
immediate action is needed to provide for the safety of life on the
navigable waters from the hazards of swimming in the Upper New York Bay
and the Lower Hudson River, particularly in the vicinity of the
shipping channel.
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 event sponsor is unable and
unwilling to postpone this event 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
date of the event would cause economic hardship on the marine event
sponsor. The rule must become effective on the dates specified in order
to provide for the safety of the swimmers and vessels operating in the
area near this event. Delaying this rule would be impracticable and
contrary to the public interest, and would expose swimmers and vessels
to the hazards associated with the swim events.
For the same reason discussed above, 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.
B. Basis and Purpose
The legal basis for this 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,
160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
This temporary safety zone is necessary to ensure the safety of
swimmers and vessels from hazards associated with the swim events.
C. Discussion of the Final Rule
This rule establishes a temporary safety zone on the navigable
waters of the Upper New York Bay and the Lower Hudson River, in the
vicinity of Liberty Island, Jersey City, Manhattan, and Governors
Island. All persons and vessels shall comply with the instructions of
the Captain of the Port (COTP) New York or the designated
representative during the enforcement of the temporary safety zone.
Entering into, transiting through, or anchoring within the temporary
safety zone is prohibited unless authorized by the COTP New York, or
the designated representative.
Based on the inherent hazards associated with open water swimming,
the COTP New York has determined that swimmers in close proximity to
water crafts pose a significant risk to the swimmers and vessels. The
combination of a high traffic area, congested waterways, and limited
visibility of active swimmers have the potential to result in serious
injuries or fatalities. This temporary safety zone will restrict
vessels from a portion of the Upper New York Bay and Lower Hudson River
around the location of the swimmers during the event.
The Coast Guard has determined that this regulated area will not
have a significant impact on vessel traffic due to its temporary nature
and the fact that vessels will be allowed to transit the navigable
waters around the location of the swimmers in the regulated area.
Advanced public notifications will also be made to local mariners
through appropriate means, which will include, but are not limited to,
the Local Notice to Mariners as well as Broadcast Notice to Mariners.
D. 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.
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 this temporary safety zone will
be of short duration and is designed to minimize the impact to vessel
traffic on the navigable waters. This temporary safety zone will only
be enforced for approximately 2 hours. Due to the location, vessels
will be able to transit around the zone in a safe manner.
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
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.
(1) 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 a portion of the navigable waters in the vicinity
of the marine events during the effective periods.
(2) This safety zone would not have a significant economic impact
on a substantial number of small entities for the following reasons:
this rule will be in effect for 2 hours; vessel traffic could pass
safely around the safety zone, and the Coast Guard will notify mariners
before activating the zone by appropriate means including but not
[[Page 53771]]
limited to Local Notice to Mariners and Broadcast Notice to Mariners.
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 a temporary safety
zone. 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
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
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 AREA
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.
0
2. Add Sec. 165.T01-0717 to read as follows:
Sec. 165.T01-0717 Safety Zone; Liberty to Freedom Swim, Liberty
Island, Upper Bay and Hudson River, NY.
(a) Regulated Area. All navigable waters of the Upper New York Bay
and lower Hudson River, NY, bound by the following points: position
40[deg]41'16.4'' N, 074[deg]02'57.3'' W, then northeast to position
40[deg]41'57.0'' N, 074[deg]02'07.3'' W, then north to position
40[deg]42'25.9'' N, 074[deg]02'04.6'' W, then northeast to position
40[deg]42'51.2'' N, 074[deg]01'03.2'' W, then south to position
40[deg]42'16.5'' N, 074[deg]01'07.1'' W, then southwest to position
40[deg]41'03.6'' N, 074[deg]02'34.6'' W, then back to the point of
origin.
(b) Effective Date. This rule is effective from 9:30 a.m. on
September 5, 2012 until 5:00 p.m. on September 15, 2012. This rule will
be enforced from 9:30 a.m. until 11:00 a.m. on September 5, 2012 and
from 3:00 p.m. until 5:00 p.m. on September 15, 2012.
(c) Definitions. The following definitions apply to this section:
(1) Designated Representative. A ``designated representative'' is
any Coast
[[Page 53772]]
Guard commissioned, warrant or petty officer of the U.S. Coast Guard
who has been designated by the Captain of the Port Sector New York
(COTP), to act on his or her behalf. 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.
(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.
(3) Spectators. All persons and vessels not registered with the
event sponsor as participants or official patrol vessels.
(d) Regulations. (1) The general regulations contained in 33 CFR
165.23, as well as the following regulations, apply.
(2) No vessels, except for event coordinators and support vessels,
will be allowed to transit the safety zone without the permission of
the COTP. Vessels not associated with the event that are permitted to
enter the regulated areas shall maintain a separation of at least 100
yards from the participants.
(3) All persons and vessels shall comply with the instructions of
the COTP or the designated representative. Upon being hailed by a U.S.
Coast Guard vessel by siren, radio, flashing light, or other means, the
operator of a vessel shall proceed as directed. Failure to comply with
a lawful direction may result in expulsion from the regulated area,
citation for failure to comply, or both.
(4) Vessel operators desiring to enter or operate within the
regulated area 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.
(5) Spectators or other vessels shall not anchor, block, loiter, or
impede the transit of event participants or official patrol vessels in
the regulated areas during the effective dates and times, unless
authorized by COTP or the designated representative.
(6) 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.
Dated: August 20, 2012.
G.A. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2012-21717 Filed 8-31-12; 8:45 am]
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