[Federal Register Volume 77, Number 232 (Monday, December 3, 2012)]
[Rules and Regulations]
[Pages 71531-71533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29134]



Coast Guard

33 CFR Part 100

[Docket No. USCG-2012-0386]
RIN 1625-AA08

Special Local Regulation; Kelley's Island Swim, Lake Erie; 
Kelley's Island, Lakeside, OH

AGENCY: Coast Guard, DHS.

ACTION: Final rule.


SUMMARY: The Coast Guard is amending its regulations in 33 CFR part 100 
by adding a Special Local Regulation within the Captain of the Port 
Detroit Zone. This regulation is intended to regulate vessel movement 
in portions of Lake Erie during the annual Kelley's Island Swim. This 
special local regulated area is necessary to protect swimmers from 
vessel traffic.

DATES: This final rule is effective January 2, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
number USCG-2012-0386. 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 LTJG Benjamin Nessia, Response Department, Marine Safety 
Unit Toledo, Coast Guard; telephone (419) 418-6040, email 
[email protected]. If you have questions on viewing material 
to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.


Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
TFR Temporary Final Rule

A. Regulatory History and Information

    On June 5, 2012, the Coast Guard published an NPRM entitled Special 
Local Regulation; Kelley's Island Swim, Lake Erie; Kelley's Island, 
Lakeside, OH in the Federal Register (77 FR 33130). We did not receive 
any comments in response to the proposed rule. No public meeting was 
requested and none was held.

B. Basis and Purpose

    Each year an organized swimming event takes place in Lake Erie in 
which individuals swim the four miles between Lakeside and Kelley's 
Island, OH. The Captain of the Port Detroit has determined that 
swimmers in close proximity to watercraft and in the shipping channel 
pose extra and unusual hazards to public safety and property. Thus, the 
Captain of the Port Detroit has determined that establishing a Special 
Local Regulation around the location of the race's course will help 
ensure the safety of persons and property at these events and help 
minimize the associated risks.

C. Discussion of Comment, Changes and the Final Rule

    To mitigate the dangers presented by a large number of swimmers 
crossing a shipping channel during a four mile competition, the Captain 
of the Port Detroit has determined that establishing a Special Local 
Regulation is necessary. Thus, the Coast Guard is amending 33 CFR part 
100 by adding Sec.  100.921 to establish a permanent Special Local 
Regulation. The affected area encompasses all the waters of Lake Erie 
between Lakeside, OH and Kelley's Island, OH bound by a line extending 
from a point on land at the Lakeside dock at positions 
41[deg]32'51.96'' N; 082[deg]45'3.15'' W and 41[deg]32'52.21'' N; 
082[deg]45'2.19'' W and a line extending to Kelley's Island dock to 
positions 41[deg]35'24.59'' N; 082[deg]42'16.61'' W and 
41[deg]35'24.44'' N; 082[deg]42'16.04'' W (Datum: NAD 83). The precise 
times and dates of enforcement for this regulated area will be 
determined annually.
    The Captain of the Port Detroit will use all appropriate means to 
notify the public when the Special Local Regulation in this rule will 
be enforced. Such means may include publication in the Federal 
Register, Broadcast Notice to Mariners, Local Notice to Mariners, or, 
upon request, by facsimilie (fax). Also, the Captain of the Port will 
issue a Broadcast Notice to Mariners notifying the public if 
enforcement of the affected area in this section is cancelled 
    No comments were received in response to and there are no changes 
to the rule as proposed by the NPRM published June 5, 2012.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and 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, 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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS). We conclude that this rule is not a significant 
regulatory action because we anticipate that it will have minimal 
impact on the economy, will not interfere with other agencies, will not 
adversely alter the budget of any grant or loan recipients, and will 
not raise any novel legal or policy issues. The regulated area 
established by this rule will be relatively small and enforced for 
relatively short time. Also, the regulated area is designed to minimize 
its impact on navigable waters. Furthermore, this regulated area has 
been designed to allow vessels to transit the area affected by this 
regulation, provided vessel operators meet the requirements set forth 
by this rule. Thus, restrictions on vessel movements within any 
particular area are expected to be minimal. On the whole, the Coast 
Guard expects insignificant adverse impact to mariners from the 
activation of this regulated area.

2. Impact on Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a

[[Page 71532]]

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 
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
or anchor in the above portion of Lake Erie, Lakeside, OH between 7:00 
a.m. and 11:00 a.m. on the dates of the event, which will be determined 
annually. The special local regulation will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons: This rule will be in effect for 4 hours on the day 
of the event, and vessels wishing to transit through the affected area 
may do so with caution. The Coast Guard will give notice to the public 
via a local Notice to Mariners that the regulation is in effect. 
Additionally, the COTP will suspend enforcement of the special local 
regulation if the event for which the special local regulation is 
established ends earlier than the time expected.

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 this 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, 
    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 calls for no 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 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 

6. 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.

7. 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 

8. 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.

9. 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.

10. 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 Federal Government and Indian tribes.

11. 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.

12. Technical Standards

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

13. 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 have made a 
preliminary determination that 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)(h) of the Instruction and during the 
annual permitting process for this dragon boat racing event an 
environmental analysis will be conducted to include the effects of this 
Special Local Regulation.

List of Subjects in 33 CFR Part 100

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

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 100 as follows:


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

    Authority: 33 U.S.C. 1233.

2. Add Sec.  100.921 to read as follows:

Sec.  100.921  Special Local Regulation; Kelley's Island Swim, Lake 
Erie, Lakeside, OH.

    (a) Regulated area. The regulated area includes all U.S. navigable 
waters of lake Erie, Lakeside, OH, contained by a line connecting the 
following points: two points on land at the Lakeside dock, 
41[deg]32'51.96'' N/082[deg]45'3.15'' W and 41[deg]32'52.21'' N/
082[deg]45'2.19'' W, and two points on Kelley's Island at the Kelley's 
Island Dock, 41[deg]35'24.59'' N/082[deg]42'16.61'' W, and 
41[deg]35'24.44'' N/082[deg]42'16.04'' W (Datum: NAD 83).

[[Page 71533]]

    (b) Special Local Regulations. The regulations of Sec.  100.901 
apply. Vessels transiting within the regulated area shall travel at a 
no-wake speed and remain vigilant for swimmers. Additionally, vessels 
shall yield right-of-way for event participants and event safety craft 
and shall follow directions given by event representatives during the 
    (c) Enforcement period. These Special Local Regulations will be 
enforced annually. The exact enforcement date and times will be 
published annually in the Federal Register via a Notice of Enforcement.

    Dated: November 19, 2012.
J.E. Ogden,
Captain, U.S. Coast Guard, Captain of the Port Detroit.
[FR Doc. 2012-29134 Filed 11-30-12; 8:45 am]