[Federal Register Volume 79, Number 121 (Tuesday, June 24, 2014)]
[Rules and Regulations]
[Pages 35690-35692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14707]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2014-0117]
RIN 1625-AA00


Safety Zone; Lady Liberty Sharkfest Swim; Upper New York Bay, 
Liberty Island, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for a 
swim event on the navigable waters of Upper New York Bay in the 
vicinity of Liberty Island, New York. This temporary safety zone is 
necessary to protect the maritime public and event participants from 
the hazards associated with swim events taking place in a high vessel 
traffic area. This rule is intended to restrict all vessels from a 
portion of Upper New York Bay before and during the swim event.

DATES: This rule is effective on June 29, 2014 from 7:00 a.m. to 10:00 
a.m.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2014-0117]. 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 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 
Cheryl Collins, 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. Regulatory History and Information

    The Coast Guard published a notice of proposed rulemaking (NPRM) 
entitled Lady Liberty Sharkfest Swim; Upper New York Bay, Liberty 
Island, NY on April 25, 2014 in the Federal Register (79 FR 22924). We 
received no comments on the proposed rule. No public meeting was 
requested and none was held.
    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 final 
publication in the Federal Register. The event sponsor is unable and 
unwilling to postpone this event because the date of this event was 
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 date 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.

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 Captain of the Port (COTP) has determined that swimming events 
in close proximity to marine traffic pose significant risk to public 
safety and

[[Page 35691]]

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 a temporary safety zone 
for the duration of the event.
    This rule prevents vessels from entering into, transiting through, 
mooring or anchoring within the area specifically designated as the 
safety zone during the period of enforcement unless authorized by the 
COTP, or the designated representative.

C. Discussion of Comments, Changes and the Final Rule

    No comments were received and no changes were made to the final 
rule.
    The swim event will occur from approximately 7:30 a.m. until 
approximately 9:30 a.m. on June 29, 2014. In order to coordinate the 
safe movement of vessels within the area and to ensure that the area is 
clear of unauthorized persons and vessels before, during, and 
immediately after the swim event, this zone will be effective from 
approximately 7:00 a.m. until approximately 10:00 a.m. on June 29, 
2014.
    Vessels will still be able to transit the surrounding area and may 
be authorized to transit through the safety zone with permission from 
the COTP or a designated representative. The COTP does not anticipate 
any negative impact on vessel traffic due to this safety zone.

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 enforcement of this safety zone will be of short 
duration, lasting only 3 hours. The safety zone will restrict access to 
only a small portion of the navigable waterways of the Upper New York 
Bay. Vessels will be able to navigate around the safety zone. 
Furthermore, vessels may be authorized to transit through the safety 
zone with the permission of the COTP.

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 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 received no comments from the Small Business 
Administration on this rule. 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 event during the effective period.
    (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 a short period, vessel traffic could 
pass safely around the safety zone, and the Coast Guard will notify 
mariners before activating the zone by appropriate means which may 
include but are 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.

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.

[[Page 35692]]

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 establishment of a temporary safety 
zone. This rule may be 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

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.
    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMMITED 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.


0
2. Add Sec.  165.T01-0117 to read as follows:


Sec.  165.T01-0117  Safety Zone; Lady Liberty Sharkfest Swim; Upper New 
York Bay, Liberty Island, NY.

    (a) Regulated Area. The following area is a temporary safety zone: 
All navigable waters of the Upper New York Bay bound by a line drawn 
from position 40[deg]42'44.82'' N, 074[deg]02'18.03'' W, east to 
position 40[deg]42'28.86'' N, 074[deg]01'30.22'' W, south to position 
40[deg]42'12.24'' N, 074[deg]02'18.22'' W, west to position 
40[deg]41'35.38'' N, 074[deg]03'12.61'' W, then north along the 
shoreline back to the point of origin.
    (b) Enforcement Period. This rule will be enforced from 
approximately 7:00 a.m. to 10:00 a.m. on June 29, 2014.
    (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 (COTP) 
New York, to act on his or her behalf. A 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.
    (d) Regulations.
    (1) The general regulations contained in 33 CFR 165.23, as well as 
the following regulations, apply.
    (2) No vessels, except for support vessels provided by the event 
sponsor, will be allowed to transit the safety zone without the 
permission of the COTP.
    (3) All persons and vessels shall comply with the instructions of 
the COTP or a 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.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the COTP or a designated representative via VHF 
channel 16 or 718-354-4353 (Sector New York command center) to obtain 
permission to do so.

    Dated: June 7, 2014.
G. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2014-14707 Filed 6-23-14; 8:45 am]
BILLING CODE 9110-04-P