[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Rules and Regulations]
[Pages 33700-33703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13282]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2013-0402]
RIN 1625-AA08


Special Local Regulations for Marine Events, Pleasantville 
Aquatics 15th Annual 5K Open Water Swim, Intracoastal Waterway; 
Atlantic City, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a special local regulation on 
the Intracoastal Waterway in Atlantic City, NJ. This special local 
regulation will restrict vessel traffic on a portion of the 
Intracoastal Waterway from operating while a swim event is taking 
place. This special local regulation is necessary to protect the 
swimmers from the hazards associated with passing vessel traffic.

DATES: This rule will be effective from 9 a.m. until 12 noon on June 9, 
2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0402]. 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 
temporary rule, call or email Lieutenant Corrina Ott, Chief Waterways 
Management, Sector Delaware Bay, Coast Guard; telephone (215) 271-4902, 
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

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking


[[Page 33701]]



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 immediate action is necessary to 
provide for the safety of life and property in the navigable water. In 
addition, publishing an NPRM is impracticable given that the final 
details for this event were not received by the Coast Guard with 
sufficient time for a notice and comment period to run before the start 
of the event. Thus, delaying this rule to wait for a notice and comment 
period to run would be impracticable and would be contrary to the 
public interest by inhibiting the Coast Guard's ability to protect the 
swimmers from the hazards associated with maritime traffic.
    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. For the same reasons discussed in 
the preceding paragraph, a 30 day notice period would be impracticable 
and contrary to the public interest.

B. Basis and Purpose

    On June 9, 2013, swimmers will be in the waters of the Intracoastal 
Waterway for the Pleasantville Aquatics 15th Annual 5K Open Water Swim. 
The Captain of the Port, Sector Delaware Bay, has determined that this 
rule is necessary to ensure safety of life on the navigable waters of 
the United States during the open water swim.

C. Discussion of Rule

    On June 9, 2013, Pleasantville Aquatics will host a 5K swimming 
race between Albany Avenue and Dorset Avenue bridges. The race will be 
conducted in two waves beginning at 9 a.m. A shorter 2K race will also 
be conducted in two waves beginning at 11 a.m.
    To mitigate the risks associated with the swim race, the Captain of 
the Port, Sector Delaware Bay has established a special local 
regulation in the vicinity of the swim sites. The regulated area will 
encompass all waters shoreline to shoreline starting at 39[deg] 20' 
31'' N, 74[deg] 28' 41'' W North to 39[deg] 21' 52'' N, 74[deg] 26' 
48'' W East to 39[deg] 21' 51'' N, 74[deg] 26' 43'' W South to 39[deg] 
20' 30'' N, 74[deg] 28' 40'' W West to 39[deg] 20' 31'' N, 74[deg] 28' 
41'' W. The regulated area will be effective and enforced from 9 a.m. 
to 12 p.m. on June 9, 2013.
    Entry into, transiting, or anchoring within the regulated area is 
prohibited unless authorized by the Captain of the Port, Sector 
Delaware Bay, or her representative. The Captain of the Port, Sector 
Delaware Bay, or her representative may be contacted via VHF channel 
16.

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, 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. Although this regulation restricts vessel 
traffic from operating within the safety zone on the navigable waters 
of the Intracoastal Waterway, Atlantic City, NJ, the effect of this 
regulation will not be significant due to the limited duration that the 
safety zone will be in effect. The enforcement window will be for three 
hours. The race has been conducted in years past, as this is the 15th 
annual event, therefore, mariners should expect this event to occur.

2. Impact on 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. This rule will 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 Intracoastal Waterway between 
9 a.m. and 12 p.m. on June 9, 2013.
    This regulation will not have a significant economic impact on a 
substantial number of small entities for the following reasons: this 
rule will only be enforced for a short period of time. In addition, 
this is an annual event that mariners who frequently navigate these 
waters are familiar with. In the event that this special local 
regulation affects shipping, commercial vessels may request permission 
from the Captain of the Port, Sector Delaware Bay, to transit through 
regulated area. The Coast Guard will give notice to the public via a 
Broadcast to Mariners that the regulation is in effect.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can 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.

4. 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).

5. 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.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the

[[Page 33702]]

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 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 concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule involves the establishment of a safety zone for a duration of 
less than one week in order to ensure the safety of swimmers. This rule 
is categorically excluded, under figure 2-1, paragraph 34(h), of the 
Instruction because it involves the establishment of a special local 
regulation. An environmental analysis checklist and a categorical 
exclusion determination are not required. 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 100

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

    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:  33 U.S.C. 1233.


0
2. Add temporary Sec.  100.35T05-0402, to read as follows:


Sec.  100.35T05-0402  Special Local Regulations for Marine Events, 
Pleasantville Aquatics 15th Annual 5K Open Water Swim, Intracoastal 
Waterway; Atlantic City, NJ.

    (a) Location. The regulated area will encompass all waters 
shoreline to shoreline starting at 39[deg]20'31'' N, 74[deg]28'41'' W 
North to 39[deg]21'52'' N, 74[deg]26'48'' W East to 39[deg]21'51'' N, 
74[deg]26'43'' W South to 39[deg]20'30'' N, 74[deg]28'40'' W West to 
39[deg]20'31'' N, 74[deg]28'41'' W.
    (b) Enforcement period. This rule will be enforced from 9 a.m. 
until 12 noon on June 9, 2013.
    (c) Regulations. All persons are required to comply with the 
general regulations governing special local regulations in 33 CFR part 
100.
    (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 15th Annual 5K Open Water Swim event or are 
otherwise authorized by the Captain of the Port Sector Delaware Bay or 
her Designated on scene Patrol Commander.
    (2) The Coast Guard Patrol Commander may forbid and control the 
movement of all vessels in the regulated area(s). When hailed or 
signaled by an official patrol vessel, a vessel in these areas shall 
immediately comply with the directions given. Failure to do so may 
result in expulsion from the area, citation for failure to comply, or 
both.
    (3) The Coast Guard Patrol Commander may delay, modify, or 
terminate the event, at any time if it is deemed necessary for the 
protection of life or property.
    (4) Only event sponsor designated participants and official patrol 
vessels are allowed to enter the regulated area.
    (5) Spectators are allowed inside the regulated area only if they 
remain within a designated spectator area. Spectators may contact the 
Coast Guard Patrol Commander to request permission to pass through the 
regulated area. If permission is granted, spectators must pass directly 
through the regulated area at safe speed and without loitering.
    (6) To seek permission to transit the regulated area, the Captain 
of the Port or her representative can be contacted via Sector Delaware 
Bay Command Center (215) 271-4940 or via VHF radio on channel 16.
    (7) This section applies to all vessels wishing to transit through 
the regulated area except vessels that are engaged in the following 
operations:
    (i) Enforcing laws;
    (ii) Servicing aids to navigation, and
    (iii) Emergency response vessels.
    (8) Each person and vessel in the regulated area shall obey any 
direction or order of the Captain of the Port;
    (9) The Captain of the Port may take possession and control of any 
vessel in the regulated area;
    (10) The Captain of the Port may remove any person, vessel, 
article, or thing from the regulated area;
    (11) No person may board, or take or place any article or thing on 
board, any vessel in the regulated area without the permission of the 
Captain of the Port; and
    (12) No person may take or place any article or thing upon any 
waterfront facility in the regulated area without the permission of the 
Captain of the Port.
    (d) Definitions. The Captain of the Port means the Commanding 
Officer of Sector Delaware Bay and the ``on-scene

[[Page 33703]]

representative'' of the Captain of the Port, Sector Delaware Bay is any 
Coast Guard commissioned warrant or petty officer who has been 
authorized by the Captain of the Port to act on her behalf.
    (e) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the regulated by Federal, State, and local agencies.

    Dated: May 20, 2013.
K. Moore,
Captain, U.S. Coast Guard, Captain of the Port Sector Delaware Bay.
[FR Doc. 2013-13282 Filed 6-4-13; 8:45 am]
BILLING CODE 9110-04-P