[Federal Register Volume 75, Number 128 (Tuesday, July 6, 2010)]
[Rules and Regulations]
[Pages 38710-38712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16367]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent Special Local 
Regulation on the navigable waters of Huntington Bay, New York due to 
the annual Fran Schnarr Open Water Championships. This Special Local 
Regulation is necessary to provide for the safety of life by protecting 
swimmers and their safety craft from the hazards imposed by marine 
traffic. Entry into this zone is prohibited unless authorized by the 
Captain of the Port Long Island Sound, New Haven, CT.

DATES: This rule is effective July 6, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned 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, inserting USCG-2009-0520 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call or e-mail Chief Petty Officer Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, 
[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

    On March 22, 2010, the Coast Guard published a Supplemental Notice 
of Proposed Rulemaking (SNPRM) entitled ``Special Local Regulation, 
Fran Schnarr Open Water Championships, Huntington Bay, NY'' in the 
Federal Register (75 FR 13454). The Coast Guard received no comments or 
requests for meetings on the proposed rule.
    The Coast Guard is issuing this temporary final rule without the 
30-day delayed effective date normally required by the Administrative 
Procedure Act (APA) (5 U.S.C. 553(d)). 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. To delay 
the effective date in this case would be impractical and unnecessary. 
Delay would be impractical because it would require that the event be 
rescheduled, a change which would affect hundreds of persons. Delay is 
also unnecessary because this event is not controversial; in the three 
months since the initial notice of proposed rulemaking, exactly zero 
comments have been received.

Basis and Purpose

    The Fran Schnarr Open Water Championships is an annual open water 
swim on the waters of Huntington Bay, NY. This swim has historically 
involved up to 150 swimmers and accompanying safety craft. Prior to 
this rule there was not a permanent regulation in place to protect the 
swimmers or safety craft from the hazards imposed by marine traffic. To 
provide for the safety of life, the Coast Guard is establishing a 
permanent special local regulation on the navigable waters of 
Huntington Bay, New York that excludes all unauthorized persons and 
vessels from approaching within 100 yards of any swimmer or safety 
craft on the race course.

Background

    On October 6, 2009 the Coast Guard published a Notice of Proposed 
Rulemaking with request for comments titled, ``Special Local 
Regulation, Fran Schnarr Open Water Championships, Huntington Bay, NY'' 
(Docket number USCG-2009-0520) in the Federal Register (74 FR 51243). 
The notice proposed a regulated area encompassing 100 yards around the 
race course for the duration of the race. This provided safety of life 
for swimmers and safety craft, but any vessel transiting through the 
Bay would have to pass through the regulated area putting a burden on 
vessel traffic. This regulated area was considered but was not chosen 
due to its burden on vessel traffic.
    On March 22, 2010, the Coast Guard published a supplemental notice 
of proposed rulemaking (SNPRM) entitled: Special Local Regulation, Fran 
Schnarr Open Water Championships,

[[Page 38711]]

Huntington Bay, NY in the Federal Register (75 FR 13454).
    This notice proposes a 100 yard regulated area that encompasses the 
swimmers and safety craft moving with them as they travel the race 
course. This moving regulated area provides protection for swimmers and 
safety craft with a much smaller regulated area. It allows vessels to 
pass through the race course as long as they stay clear of the swimmers 
and safety craft reducing the burden on vessel traffic. This proposal 
was chosen because it provides the same amount of safety as the 
previously proposed regulated area while being less of a burden on 
vessel traffic.

Discussion of Comments and Changes

    No comments or requests for meetings were received. However, during 
the final edits of the Final Rule we realized that the description of 
the regulated area was incorrect and needed clarification. A 
supplemental notice of proposed rulemaking with request for comments 
was then published to provide clarification of the regulatory text and 
minimize the regulated area.
    The changes in the text redefined the regulated area from 100 yards 
of the race course to 100 yards from any swimmer or safety craft so 
that it would not block the entire waterway. This will reduce the 
burden on vessels by allowing them to pass through the race course as 
long as they stay clear of the swimmers and safety craft.

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.

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. We did not receive any comments regarding the impact 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), in the SNPRM we offered to 
assist small entities in understanding the rule so that they could 
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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

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. As stated previously, there were no comments received from the 
previous rulemaking.

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

[[Page 38712]]

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 that 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 finalizes the establishment of a special 
local regulation that was published as a Supplemental Notice of 
Proposed Rulemaking with an invitation to comment on March 22, 2010. No 
comments were received that would affect the assessment of 
environmental impacts from this action. An environmental analysis 
checklist and a categorical exclusion determination are 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:  Authority: 33 U.S.C. 1233.


0
2. Add Sec.  100.122 to read as follows:


Sec.  100.122  Fran Schnarr Open Water Championships, Huntington Bay, 
New York.

    (a) Regulated area. All navigable waters of Huntington Bay, NY 
within 100 yards of any swimmer or safety craft on the race course 
bounded by the following points: Start/Finish at approximate position 
40[deg]54'25.8'' N 073[deg]24'28.8'' W, East Turn at approximate 
position 40[deg]54'45'' N 073[deg]23'36.6'' W and a West Turn at 
approximate position 40[deg]54'31.2'' N 073[deg]25'21'' W.
    (b) Definitions. The following definitions apply 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) No person or vessel may approach 
or remain within 100 yards of any swimmer or safety craft within the 
regulated area during the enforcement period of this regulation unless 
they are officially participating in the Fran Schnarr Open Water 
Championships event or are otherwise authorized by the Captain of the 
Port Long Island Sound or by Designated On-scene Patrol Personnel.
    (2) All persons and vessels must comply with the instructions from 
Coast Guard Captain of the Port 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.
    (3) 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.
    (4) Persons and vessels desiring to enter the regulated area within 
100 yards of a swimmer or safety craft may request permission to enter 
from the designated on scene patrol personnel by contacting them on 
VHF-16 or by a request 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 July 11, 2010 and thereafter on a specified day each July 
to be determined on an annual basis. Notification of the specific date, 
times and enforcement of the special local regulation will be made via 
a Notice of Enforcement in the Federal Register, separate marine 
broadcasts and local notice to mariners.

    Dated: June 1, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. 2010-16367 Filed 7-2-10; 8:45 am]
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