[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Rules and Regulations]
[Pages 53769-53772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21717]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0717]
RIN 1625-AA00


Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay 
and 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 Upper New York Bay, NY and the Lower Hudson River 
for the September 5, 2012 and September 15, 2012 Liberty to Freedom 
swim events. This temporary safety zone is necessary to protect the 
maritime public and event participants from the hazards associated with 
swim events. This rule is intended to restrict all vessels and persons 
from entering into, transiting through, mooring, or anchoring within 
the safety zone unless authorized by the Captain of the Port (COTP) New 
York or a designated representative.

DATES: This rule is effective from 9:30 a.m. on September 5, 2012 until 
5 p.m. on September 15, 2012. This rule will be enforced from 9:30 a.m. 
until 11 a.m. on September 5, 2012 and from 3 p.m. until 5 p.m. on 
September 15, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0717. 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

[[Page 53770]]

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 Kristopher Kesting, Sector NY Waterways Management, 
U.S. Coast Guard; Telephone (718) 354-4154, 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. 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
NPRM Notice of Proposed Rulemaking
COTP Captain of the Port

A. Regulatory History and 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 sufficient information about the 
event was not received in time to publish a NPRM followed by a final 
rule before the effective date, thus making the publication of a NPRM 
impractical. The Coast Guard received the information about the events 
on July 14, 2012. Any delay encountered in this regulation's effective 
date by publishing a NPRM would be contrary to 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 Upper New York Bay 
and the Lower Hudson River, particularly in the vicinity of the 
shipping channel.
    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. The event sponsor is unable and 
unwilling to postpone this event because the dates of these events were 
chosen based on optimal tide, current, and weather conditions needed to 
promote the safety of swim participants. In addition, any change to the 
date of the event would cause economic hardship on the marine event 
sponsor. The rule must become effective on the dates specified in order 
to provide for the safety of the swimmers and vessels operating in the 
area near this event. Delaying this rule would be impracticable and 
contrary to the public interest, and would expose swimmers and vessels 
to the hazards associated with the swim events.
    For the same reason discussed above, 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.

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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.
    This temporary safety zone is necessary to ensure the safety of 
swimmers and vessels from hazards associated with the swim events.

C. Discussion of the Final Rule

    This rule establishes a temporary safety zone on the navigable 
waters of the Upper New York Bay and the Lower Hudson River, in the 
vicinity of Liberty Island, Jersey City, Manhattan, and Governors 
Island. All persons and vessels shall comply with the instructions of 
the Captain of the Port (COTP) New York or the designated 
representative during the enforcement of the temporary safety zone. 
Entering into, transiting through, or anchoring within the temporary 
safety zone is prohibited unless authorized by the COTP New York, or 
the designated representative.
    Based on the inherent hazards associated with open water swimming, 
the COTP New York has determined that swimmers in close proximity to 
water crafts pose a significant risk to the swimmers and vessels. The 
combination of a high traffic area, congested waterways, and limited 
visibility of active swimmers have the potential to result in serious 
injuries or fatalities. This temporary safety zone will restrict 
vessels from a portion of the Upper New York Bay and Lower Hudson River 
around the location of the swimmers during the event.
    The Coast Guard has determined that this regulated area will not 
have a significant impact on vessel traffic due to its temporary nature 
and the fact that vessels will be allowed to transit the navigable 
waters around the location of the swimmers in the regulated area.
    Advanced public notifications will also be made to local mariners 
through appropriate means, which will include, but are not limited to, 
the Local Notice to Mariners as well as Broadcast Notice to Mariners.

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.
    The Coast Guard's implementation of this temporary safety zone will 
be of short duration and is designed to minimize the impact to vessel 
traffic on the navigable waters. This temporary safety zone will only 
be enforced for approximately 2 hours. Due to the location, vessels 
will be able to transit around the zone in a safe manner.
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 will affect the following entities, some of which may 
be small entities: the owners and operators of vessels intending to 
transit or anchor in a portion of the navigable waters in the vicinity 
of the marine events during the effective periods.
    (2) This safety zone would not have a significant economic impact 
on a substantial number of small entities for the following reasons: 
this rule will be in effect for 2 hours; vessel traffic could pass 
safely around the safety zone, and the Coast Guard will notify mariners 
before activating the zone by appropriate means including but not

[[Page 53771]]

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 
INTFORMATION 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.
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; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T01-0717 to read as follows:


Sec.  165.T01-0717  Safety Zone; Liberty to Freedom Swim, Liberty 
Island, Upper Bay and Hudson River, NY.

    (a) Regulated Area. All navigable waters of the Upper New York Bay 
and lower Hudson River, NY, bound by the following points: position 
40[deg]41'16.4'' N, 074[deg]02'57.3'' W, then northeast to position 
40[deg]41'57.0'' N, 074[deg]02'07.3'' W, then north to position 
40[deg]42'25.9'' N, 074[deg]02'04.6'' W, then northeast to position 
40[deg]42'51.2'' N, 074[deg]01'03.2'' W, then south to position 
40[deg]42'16.5'' N, 074[deg]01'07.1'' W, then southwest to position 
40[deg]41'03.6'' N, 074[deg]02'34.6'' W, then back to the point of 
origin.
    (b) Effective Date. This rule is effective from 9:30 a.m. on 
September 5, 2012 until 5:00 p.m. on September 15, 2012. This rule will 
be enforced from 9:30 a.m. until 11:00 a.m. on September 5, 2012 and 
from 3:00 p.m. until 5:00 p.m. on September 15, 2012.
    (c) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast

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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: August 20, 2012.
G.A. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2012-21717 Filed 8-31-12; 8:45 am]
BILLING CODE 9110-04-P