[Federal Register Volume 74, Number 192 (Tuesday, October 6, 2009)]
[Proposed Rules]
[Pages 51243-51245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24007]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 74, No. 192 / Tuesday, October 6, 2009 / 
Proposed Rules  

[[Page 51243]]



DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2009-0520]
RIN 1625-AA08


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent Special 
Local Regulation within the waters of Huntington Bay, New York for the 
annual Fran Schnarr Open Water Championships. This proposed Special 
Local Regulation 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 held on a single day 
each July. 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: Comments and related material must reach the Coast Guard on or 
before November 5, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0520 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
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 or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0520), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand delivery, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2009-0520'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit comments by mail and 
would like to know that they reached the Facility, please enclose a 
stamped, self-addressed postcard or envelope. We will consider all 
comments and material received during the comment period and may change 
the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0520 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. 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. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we

[[Page 51244]]

determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a later notice in the Federal Register.

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. Last year, the Coast 
Guard established a temporary special local regulation to protect the 
swimmers and safety craft from the hazards imposed by passing water 
traffic and other water related activities (74 FR 33144 [USCG-2009-
0520]).
    To ensure the continued safety of the swimmers, safety craft and 
the boating public, the Coast Guard is proposing to establish a special 
local regulation around the race course for the duration of the race, 
generally from 7:15 a.m. to 11:30 a.m. on the day of the race.

Discussion of Proposed Rule

    The Coast Guard proposes to establish a special local regulation on 
the navigable waters of Huntington Bay, NY that would exclude all 
unauthorized persons and vessels from approaching within 100 yards of 
the proposed 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.
    While the special local regulation will be permanent, it will only 
be enforced for approximately four hours and fifteen minutes on a 
single day in July that will be specified annually. Notification of the 
race date and subsequent enforcement of the special local regulation 
will be made via separate notice in the Federal Register, marine 
broadcasts and local notice to mariners. Entry into this area would be 
prohibited unless authorized by the Captain of the Port Long Island 
Sound or the designated on-scene patrol personnel. Marine traffic that 
may safely do so may transit outside of the area during the enforcement 
period, allowing navigation in all other portions of Huntington Bay, NY 
not covered by this rule. Any violation of the special local regulation 
described herein is punishable by civil and criminal penalties, in rem 
liability against the offending vessel, and license sanctions.

Regulatory Analyses

    We developed this proposed 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 proposed 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 proposed 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 special local 
regulation with minimal increased transit time and the special local 
regulation will only be enforced for approximately four and a quarter 
hours on a single specified day each July.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed 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 special local regulation. 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. If you 
think that your business, organization, or governmental jurisdiction 
qualifies as a small entity and that this rule would have a significant 
economic impact on it, please submit a comment (see ADDRESSES) 
explaining why you think it qualifies and how and to what degree this 
rule would economically affect it.

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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. 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: MST1 Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, 
[email protected]. The Coast Guard will not retaliate against 
small entities that question or complain about this proposed rule or 
any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actins and Interference with Constitutionally Protected 
Property Rights.

[[Page 51245]]

Civil Justice Reform

    This proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 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. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves the establishment of a special local regulation which is 
categorically excluded from further environmental analysis under 
paragraph 34(h) of the Instruction. We seek any comments or information 
that may lead to the discovery of a significant environmental impact 
from this proposed rule.

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 proposes 
to amend 33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

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

    Authority:  33 U.S.C. 1233.

    2. Add Sec.  100.123 to read as follows:


Sec.  100.123:  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 have 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 100.35 and 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 regulation unless they 
are officially participating in the Fran Schnarr Open Water Swim event 
or are otherwise authorized by 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 to the Captain of the Port, Long Island Sound 
via phone at (203) 468-4401.
    (d) Enforcement Period. This rule is enforced from 7:15 a.m. to 
11:30 a.m. on a specified day each July to be determined on an annual 
basis. Notification of the specific date for the swim race and 
enforcement of the special local regulation will be made via separate 
notice in the Federal Register, marine broadcasts and local notice to 
mariners.

    Dated: June 17, 2009.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. E9-24007 Filed 10-5-09; 8:45 am]
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