[Federal Register Volume 74, Number 131 (Friday, July 10, 2009)]
[Rules and Regulations]
[Pages 33144-33146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16307]



[[Page 33144]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[USCG-2009-0520]
RIN 1625-AA08


Special Local Regulation, Fran Schnarr Open Water Championships, 
Huntington Bay, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard has established a temporary Special Local 
Regulation (SLR) for the waters of Huntington Bay, New York for the 
2009 Fran Schnarr Open Water Championships. This SLR is necessary to 
provide for the safety of life on the navigable waters of Huntington 
Bay by protecting swimmers from the hazards imposed by vessel traffic. 
This action is intended to increase the safety of the swimmers by 
limiting vessel access to a portion of Huntington Bay, New York during 
the swim event being held on July 12th, 2009. Entry into this area will 
be prohibited unless authorized by the Captain of the Port Long Island 
Sound or the designated on-scene patrol personnel.

DATES: This rule is effective from 7:15 a.m. through 11:30 a.m. on July 
12th, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0520 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0520 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. 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 MSTC Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, e-mail: 
[email protected]. 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 while this is an annual event, the 
dates and proposed race course were not made available to the Coast 
Guard in sufficient time to allow for a notice and comment period. A 
cancellation of the swim event in order to provide for a notice and 
comment period is impractical and contrary to the public interest in 
holding this event.
    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. Immediate action is needed to 
restrict and control maritime traffic transiting the waters of 
Huntington Bay, New York during the swim event in order to ensure the 
safety of the participants and spectators. A delay or cancellation of 
the swim event in order to accommodate an effective date 30 days after 
publication is contrary to the public's interest in holding this event.

Background and Purpose

    Over the last several years, Metropolitan Swimming, Inc. has hosted 
an annual open water championship swim on the waters of Huntington Bay, 
NY during a single day in July. This swim has historically involved up 
to 150 swimmers and accompanying safety craft. Currently there is no 
regulation in place to protect the swimmers or safety craft from the 
hazards imposed by passing water traffic and other water related 
activities.
    To ensure the continued safety of the swimmers, safety craft and 
the boating public, the Coast Guard has established a temporary special 
local regulation around the race course for the duration of the race, 
from 7:15 a.m. to 11:30 a.m. on July 12th, 2009.

Discussion of Rule

    The Coast Guard has established this temporary special local 
regulation on the navigable waters of Huntington Bay, NY to exclude all 
unauthorized persons and vessels from approaching within 100 yards of 
the planned race course which consists of the following points: Start/
Finish at approximate location 40[deg]54'25.8'' N 073[deg]24'28.8'' N, 
East Turn at approximate location 40[deg]54'45'' N 073[deg]23'36.6'' N 
and a West Turn at approximate location 40[deg]54'31.2'' N 
073[deg]25'21'' N. This action is intended to prohibit vessel traffic 
in this portion of Huntington Bay, NY to provide for the safety of 
swimmers, swimmer safety craft and the boating community from the 
hazards posed by vessels operating near persons participating in this 
open water swim.
    The temporary special local regulation will only be enforced for 
approximately four hours and fifteen minutes on the day of the race. 
Marine traffic that may safely do so, may transit outside of the 
regulated area during the enforcement period, allowing navigation in 
all other portions of Huntington Bay, NY not covered by this rule. 
Entry into the designated area would be prohibited unless authorized by 
the Captain of the Port Long Island Sound or the designated on-scene 
patrol personnel. Notification of the race date and subsequent 
enforcement of the special local regulation will be made via marine 
broadcasts and broadcast notice to mariners. Any violation of the 
special local regulation described herein is punishable by, among 
others, civil and criminal penalties, in rem liability against the 
offending vessel, and license sanctions.

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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This regulation may have 
some impact on the public, but the potential impact would be minimized 
for the following reason: vessels may transit in all areas of 
Huntington Bay, NY other than the area of the SLR with minimal 
increased transit time and the SLR will only be enforced for 
approximately four and a quarter hours on July 12th, 2009.

[[Page 33145]]

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 may affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit in those portions of Huntington Bay, NY covered by the SLR. For 
the reasons outlined in the Regulatory Evaluation section above, this 
rule will not have a significant 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), 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 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 effect 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 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 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. This rule involves a special local 
regulation issued in conjunction with a marine event. An environmental 
analysis checklist and a categorical exclusion determination will be 
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.


[[Page 33146]]



0
2. Add temporary Sec.  100.120 to read as follows:


Sec.  100.120  Fran Schnarr Open Water Championships, Huntington Bay, 
New York.

    (a) Regulated area. All navigable waters of Huntington Bay, NY 
within 100 yards of the swim race course consisting of the following 
points: Start/Finish at approximate position 40[deg]54'25.8'' N 
073[deg]24'28.8'' N, East Turn at approximate position 40[deg]54'45'' N 
073[deg]23'36.6'' N and a West Turn at approximate position 
40[deg]54'31.2'' N 073[deg]25'21'' N.
    (b) Definitions. The following definition applies to this section: 
Designated on-scene patrol personnel means any commissioned, warrant or 
petty officer of the U.S. Coast Guard operating Coast Guard vessels who 
has been authorized to act on the behalf of the Captain of the Port 
Long Island Sound.
    (c) Special local regulations. (1) The general regulations 
contained in 33 CFR Sec.  100.35 and Sec.  100.40 apply.
    (2) In accordance with the general regulations in Sec.  100.35 of 
this part, no person or vessel may enter, transit, or remain within the 
regulated area during the effective period of the regulation unless 
they are officially participating in the Fran Schnarr Open Water Swim 
event or are otherwise authorized by the Captain of the Port Long 
Island Sound or the designated on-scene patrol personnel.
    (3) All persons and vessels must comply with the instructions from 
the Coast Guard Captain of the Port Long Island Sound 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.
    (4) 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.
    (5) Persons and vessels desiring to enter the regulated area may 
request permission to enter from the designated on-scene patrol 
personnel on VHF-16 or from the Captain of the Port Long Island Sound 
via phone at (203) 468-4401.
    (d) Effective Period. This rule is in effect from 7:15 a.m. to 
11:30 a.m. on July 12th, 2009. Notification of the swim event and 
enforcement of the special local regulation will be made via separate 
marine broadcasts and broadcast notice to mariners.

    Dated: June 19, 2009.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. E9-16307 Filed 7-9-09; 8:45 am]
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