[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Proposed Rules]
[Pages 20559-20563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07909]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0026]
RIN 1625-AA00


Safety Zones; Swim Events in the Captain of the Port New York 
Zone; Hudson River, East River, Upper New York Bay, Lower New York Bay; 
New York, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of Proposed Rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to establish five temporary safety 
zones for swim events within the Captain of the Port (COTP) New York 
Zone. These proposed zones will be established on the navigable waters 
of the Hudson River, East River, Upper New York Bay, and Lower New York 
Bay. These temporary safety zones are necessary to protect the maritime 
public and event participants from the hazards associated with these 
events. Persons and vessels are prohibited from entering into, 
transiting through, mooring, or anchoring within the safety zones 
unless authorized by the COTP New York or the designated 
representative.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 4, 2013.

ADDRESSES: You may submit comments identified by docket number using 
any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: 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. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Junior Grade Kristopher Kesting, Coast Guard; 
telephone (718)354-4154, email [email protected]. If you 
have questions on viewing or submitting material to the docket, call 
Barbara Hairston, Program Manager, Docket Operations, telephone (202) 
366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

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

A. 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.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, 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 at 
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, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, 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 email 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, 
type the docket number (USCG-2013-0026) in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a

[[Page 20560]]

Comment'' on the line associated with this rulemaking.
    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.

2. 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, 
type the docket number (USCG-2013-0026) 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.

3. 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).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before April 12, 2013 using one of the methods 
specified under ADDRESSES. Please explain why you believe a public 
meeting would be beneficial. If we 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.

B. Regulatory History and Information

    In previous years, the Coast Guard has established special local 
regulations, regulated areas, and safety zones on a case-by-case basis 
to ensure the protection of the maritime public and event participants 
from hazards associated with these events. The Coast Guard has not 
received public comments or concerns regarding the impact to waterway 
traffic from these events.

C. Basis and Purpose

    The legal basis for the proposed rule is 33 U.S.C. 1266, 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, and 160.5; Public Law 107-295, 116 Stat. 2064; and 
Department of Homeland Security Delegation No. 0170.1, which 
collectively authorize the Coast Guard to define regulatory safety 
zones.
    Marine events are frequently held on the navigable waters within 
the COTP Sector New York Zone. The COTP has determined that swimming 
events in close proximity to marine traffic pose significant risk to 
public safety and property. The combination of increased numbers of 
recreation vessels, congested waterways, and large numbers of swimmers 
in the water has the potential to result in serious injuries or 
fatalities. In order to protect the safety of all waterway users 
including event participants and spectators, this temporary rule 
establishes temporary safety zones for the duration of the events.
    This rule prevents vessels from entering into, transiting through, 
and mooring or anchoring within the areas specifically designated as 
the regulated areas during the periods of enforcement unless authorized 
by the COTP, or the designated representative.

D. Discussion of Proposed Rule

    This temporary rule creates safety zones for five swim events on 
the navigable waters of the Hudson River, East River, Upper New York 
Bay and Lower New York Bay. A portion of the navigable waters will be 
closed during the effective periods to all vessel traffic except local, 
state or Coast Guard patrol crafts. The events and locations are as 
follows:
    (1) Hudson Valley Triathlon: Waters of the Hudson River in the 
vicinity of Ulster Landing, NY.
    (2) Coney Island to New Dorp Beach Swim: Waters of the Lower New 
York Bay spanning from Rockaway Point, Coney Island to New Dorp Beach, 
Staten Island.
    (3) Brooklyn Bridge Swim: Waters of the East River in the vicinity 
of Brooklyn Bridge Park, Brooklyn, NY and East River Park, New York, 
NY.
    (4) The Liberty to Freedom Swim: Waters of the Upper New York Bay, 
from Liberty Island, NJ to North Cove, New York, NY.
    (5) Ederle Swim: Waters of the Hudson River between North Cove 
Marina, New York, NY and Sandy Hook, NJ.
    The proposed regulation would prevent vessels from transiting in 
close proximity to swimmers in areas designated as safety zones during 
the periods of enforcement to ensure protection of the maritime public 
and event participants from hazards associated with the listed swim 
events.
    Event sponsors, designated participants, and official patrol 
vessels will be allowed to enter the regulated areas. Spectators and 
other vessels not registered as event participants will not be 
permitted to enter the safety zones without permission of the COTP or 
the designated representative. Marine traffic will be permitted to pass 
through safety zones at a safe distance from event participants with 
permission of the COTP or the designated representative.

E. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on a number of these statutes or executive orders.

1. 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, 
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.
    These safety zones will be of limited duration, and vessels may 
transit in portions of the affected waterway. Furthermore, vessels may 
be authorized to transit these zones with the permission of the COTP 
New York or the designated representative.
    Notifications will be made to the local maritime community through 
the Local Notice to Mariners and Broadcast Notice to Mariners well in 
advance of the events. No new or additional restrictions would be 
imposed on vessel traffic.

2. Impact on Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered the impact of this proposed rule on small entities. The 
Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This rule will affect the following entities, some of which may be 
small

[[Page 20561]]

entities: The owners and operators of vessels intending to transit, 
fish or anchor in the designated safety zones during the enforcement 
period of the swim events.
    The safety zones will not have significant economic impact on a 
substantial number of small entities for the following reasons: Vessels 
will only be restricted from safety zone areas for a short duration of 
time; vessels may transit in portions of the affected waterway at a 
safe distance from event participants with permission of the COTP or 
the designated representative; the Coast Guard has promulgated safety 
zones in accordance with 33 CFR part 165 for all event areas in the 
past and has not received notice of any negative impact caused by any 
of the safety zones; and notifications will be made to the local 
maritime community through the Local Notice to Mariners and Broadcast 
Notice to Mariners well in advance of the events.
    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.

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 proposed 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. 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.

4. Collection of Information

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

8. Taking of Private Property

    This proposed rule would 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 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.

10. Protection of Children From Environmental Health Risks

    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.

11. 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.

12. Energy Effects

    This proposed rule 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

14. 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 that do not individually or cumulatively have a 
significant effect on the human environment. This proposed rule 
involves the establishment of five temporary safety zones for swim 
events. This proposed rule may be categorically excluded from further 
review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. A preliminary environmental analysis checklist supporting 
this determination is 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 proposed 
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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, which authorizes the Coast Guard to define Safety Zone 
Regulations.


[[Page 20562]]


0
2. Add Sec.  165.T01-0026 to read as follows:


Sec.  165.T01-0026  Swim Events in the Captain of the Port New York 
Zone, Hudson River, East River, Upper New York Bay, Lower New York Bay, 
New York, NY.

    (a) Regulation. The general regulations contained in 33 CFR 165.23 
as well as the following regulations apply to the swim events listed in 
the TABLE to 165.T01-0026. These regulations will be enforced for the 
duration of each swim event. Notifications of exact dates and times of 
the enforcement period will be made to the local maritime community in 
the final rule. First Coast Guard District Local Notice to Mariners can 
be found at http://www.navcen.uscg.gov/.
    (b) 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 (COTP) New 
York Zone to act on his or her behalf.
    (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. 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.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Vessel operators desiring to enter or operate within the 
regulated areas 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.
    (d) Spectators or other vessels shall not anchor, block, loiter 
within, or impede the transit of event participants or official patrol 
vessels in the regulated areas during the effective dates and times, or 
dates and times as modified through the Local Notice to Mariners, 
unless authorized by COTP or the designated representative.
    (e) Upon being hailed by a U.S. Coast Guard vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed. Failure to 
comply with a lawful direction may result in expulsion from the area, 
citation for failure to comply, or both.
    (f) 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.
    (g) For all swim events listed in the TABLE to Sec.  165.T01-0026, 
vessels not associated with the event that are permitted to enter the 
regulated areas in accordance with section (c), shall maintain a 
separation of at least 100 yards from the participants.

                     Table 1 to Sec.   165.T01-0026
------------------------------------------------------------------------
 
------------------------------------------------------------------------
1                                                  Hudson River
------------------------------------------------------------------------
1.1 Hudson Valley Triathlon............   Date: July 14, 2013.
                                          Location site: All
                                          waters of the Hudson River in
                                          the vicinity of Ulster
                                          Landing, bound by the
                                          following points:
                                          42[deg]00'03.7'' N,
                                          073[deg]56'43.1'' W; thence to
                                          41[deg]59'52.5'' N,
                                          073[deg]56'34.2'' W; thence to
                                          42[deg]00'15.1'' N,
                                          073[deg]56'25.2'' W; thence to
                                          42[deg]00'05.4'' N,
                                          073[deg]56'41.9'' W; thence
                                          along the shoreline to the
                                          point of origin.
------------------------------------------------------------------------
2                                               Lower New York Bay
------------------------------------------------------------------------
2.1 Coney Island to New Dorp Beach Swim   Date: October 14, and
                                          27, 2013.
                                          Location: All waters
                                          of the Lower New York Bay
                                          spanning from Rockaway Point,
                                          Coney Island to New Dorp
                                          Beach, Staten Island, bound by
                                          the following points:
                                          40[deg]32'33.69'' N,
                                          073[deg]56'25.32'' W; thence
                                          to 40[deg]26'50.97'' N,
                                          073[deg]59'01.05'' W; thence
                                          to 40[deg]28'52.26'' N,
                                          074[deg]0'21.97'' W; thence to
                                          40[deg]34'13.48'' N,
                                          074[deg]0'07.18'' W; thence
                                          back to the point of origin.
------------------------------------------------------------------------
3                                        East River, Upper New York Bay,
                                                Lower New York Bay
------------------------------------------------------------------------
3.1 Brooklyn Bridge Swim...............   Date: July 07, 2013.
                                          Rain Date: NA.
                                          Location: All waters
                                          of the East River, bound by
                                          the following points:
                                          40[deg]42'17.04'' N,
                                          073[deg]59'21.87'' W; thence
                                          to 40[deg]42'12.03'' N,
                                          073[deg]59'46.17'' W; thence
                                          to 40[deg]42'24.48'' N,
                                          074[deg]0'4.09'' W; thence to
                                          40[deg]42'34.19 N,
                                          073[deg]59'31.41'' W; thence
                                          back to point of origin.
------------------------------------------------------------------------
4                                           Upper New York Bay, Hudson
                                                       River
------------------------------------------------------------------------
4.1 Liberty to Freedom Swim............   Date: September 08,
                                          2013.
                                          Location: All waters
                                          of the East River, bound by
                                          the following points:
                                          40[deg]42'17.04'' N,
                                          073[deg]59'21.87'' W; thence
                                          to 40[deg]42'12.03'' N,
                                          073[deg]59'46.17'' W; thence
                                          to 40[deg]42'24.48'' N,
                                          074[deg]0'4.09'' W; thence to
                                          40[deg]42'34.19N,
                                          073[deg]59'31.41'' W; thence
                                          back to point of origin.
------------------------------------------------------------------------
5                                           Upper New York Bay, Hudson
                                                 River [Reserved]
------------------------------------------------------------------------
6                                         Upper New York Bay, Lower New
                                                     York Bay
------------------------------------------------------------------------
6.1 Ederle Swim........................   Date: August 18, 19
                                          and 22, 2013.

[[Page 20563]]

 
                                          Location: All waters
                                          of the Hudson River, Upper and
                                          Lower New York Bays, bound by
                                          the following points:
                                          40[deg]42'48.13'' N,
                                          074[deg]0'58.74'' W; thence to
                                          40[deg]42'3.20'' N,
                                          073[deg]59'54.84'' W; thence
                                          to 40[deg]36'32.70'' N,
                                          074[deg]2'10.73'' W; thence to
                                          40[deg]28'4.43 N,
                                          073[deg]59'38.14'' W; thence
                                          to 40[deg]28'41.58'' N,
                                          074[deg]0'55.27'' W; thence to
                                          40[deg]38'38.77'' N,
                                          074[deg]4'15.05'' W; thence to
                                          40[deg]43'0.31'' N,
                                          074[deg]1'48.11'' W thence
                                          back to point of origin.
------------------------------------------------------------------------


    Dated: March 2, 2013.
G. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2013-07909 Filed 4-4-13; 8:45 am]
BILLING CODE 9110-04-P