[Federal Register Volume 77, Number 135 (Friday, July 13, 2012)]
[Rules and Regulations]
[Pages 41271-41273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17085]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0538]
RIN 1625-AA00


Safety Zone; Newburgh to Beacon Swim, Newburgh, 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 the Hudson River, NY in the vicinity of Newburgh, 
NY for the annual Newburgh Beacon Swim event. This temporary safety 
zone is necessary to protect swimmers, spectators and vessels from the 
hazards associated with swimmers competing in a swim across the Hudson 
River. Persons and vessels are prohibited from entering into, 
transiting through, or anchoring within the safety zone unless 
authorized by the Captain of the Port (COTP) New York or the designated 
representative.

DATES: This rule is effective from 9:30 a.m. until 11:30 a.m. on July 
21, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2012-0538]. 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 Ensign Kimberly Farnsworth, Coast Guard; Telephone (718) 
354-4163, email [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:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
CFR Code of Federal Regulations
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port

A. Regulatory History and Information

    The Newburgh Beacon Swim is an annual recurring event that has a 
permanent safety zone found at 33 CFR 165.160. The effective date for 
the permanent safety zone is the last weekend in July with a rain date 
as the first weekend in August each year.
    The Coast Guard is issuing this 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 delaying this event would be contrary 
to the public interest.
    The Newburgh Beacon Swim event will occur this year on July 21, 
2012. On May 24, 2012, the sponsor of the event advised the Coast Guard 
that due to optimal tide, current, and weather conditions needed to 
promote the safety of the swim participants, they were changing the 
date of the event from the last weekend in July (with a rain date as 
the first weekend in August) to July 21, 2012, thereby rendering the 
permanent safety zone set forth in 33 CFR 165.160 inapplicable for this 
year's event.
    Any delay in the effective date of this rule would be contrary to 
the 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 Hudson River, particularly in the vicinity of the shipping 
channel. The safety zone is necessary to provide for the safety of 
event participants, spectator crafts, and other vessels operating near 
the event area. For the safety concerns noted, it is in the public 
interest to have this

[[Page 41272]]

regulation in effect during this event. In addition, any change to the 
date of the event could potentially cause economic hardship on the 
marine event sponsor and negatively impact other activities being held 
in conjunction with these events (e.g., the ``Hudson River Day 
Celebration'') by potentially causing numerous event participant 
cancellations.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds for the reasons 
stated above 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; Public Law 107-295, 116 Stat. 2064; Department of Homeland 
Security Delegation No. 0170.1.
    The Coast Guard received an application to hold the annual Newburgh 
Beacon Swim on the waters of the Hudson River in the vicinity of 
Newburgh, NY. With this application, the event sponsor requested that 
the event be permitted to take place on Saturday, July 21, 2012 rather 
than the usual last weekend in July. The deviation from the permanent 
regulation was requested to avoid unsafe tide and current conditions 
expected to occur during the last weekend in July and to have the event 
in conjunction with the ``Hudson River Day Celebration.''

C. Discussion of the Final Rule

    The Coast Guard is establishing a temporary safety zone on the 
waters of the Hudson River in the vicinity of Newburgh, NY for the 
annual Newburgh Beacon Swim event. This temporary rule will restrict 
vessels from a portion of the Hudson River during the swim event on 
Saturday, July 21, 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 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.
    We expect the economic impact of this rule to be very minimal. 
Although this regulation may have some impact on the public, the 
potential impact will be minimized for the following reasons. Vessels 
will only be restricted from the safety zone for a short duration of 
time. Before activating the zone, we will notify mariners by 
appropriate means including but not limited to Local Notice to Mariners 
and Broadcast Notice to Mariners. Additionally, the Coast Guard 
promulgated a permanent safety zone found in 33 CFR Part 165 for the 
event area in the past and no adverse comments or notice of any 
negative impact caused by the safety zone were received.

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 would affect the following entities, some of which 
might be small entities: The owners or operators of vessels intending 
to transit or anchor in a portion of the Hudson River during the 
effective period.
    (2) This safety zone will not have a significant economic impact on 
a substantial number of small entities for the following reasons. This 
safety zone will be enforced for only 2 hours. Vessel traffic can pass 
safely through the safety zone with permission from the COTP or a 
designated representative. Before activating the zone, we will notify 
mariners by appropriate means including but not 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 
INFORMATION 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.

[[Page 41273]]

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; Public Law 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T01-0538 to read as follows:


Sec.  165.T01-0538  Safety Zone; Newburgh Beacon Swim, Newburgh, Hudson 
River, NY.

    (a) Regulated Area. The following area is a regulated area: All 
navigable waters of the Hudson River, NY in the vicinity of Newburgh, 
NY bound by the following points: 41[deg]30'33.67'' N 073[deg]0'20.09'' 
W; thence to 41[deg]30'29.17'' N 073[deg]59'06.89'' W; thence to 
41[deg]30'11.53'' N 073[deg]59'14.83'' W; thence to 41[deg]30'15.15'' N 
073[deg]0'17.80'' W; thence north along the shoreline to the point of 
the beginning. This area is approximately 1500 yards south of the 
Newburgh-Beacon Bridges.
    (b) Effective Date. This rule is effective from 9:30 a.m. until 
11:30 a.m. on July 21, 2012.
    (c) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast 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: June 27, 2012.
G.A. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2012-17085 Filed 7-12-12; 8:45 am]
BILLING CODE 9110-04-P