[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Proposed Rules]
[Pages 14061-14064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06949]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2019-0203]
RIN 1625-AA08


Special Local Regulation; Upper Potomac River, National Harbor, 
MD

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish special local 
regulations for certain waters of the Upper Potomac River. This action 
is necessary to provide for the safety of life on these navigable 
waters located at National Harbor, MD, during a swim event on the 
morning of June 23, 2019. This rule would prohibit persons and vessels 
from entering the regulated area unless authorized by the Captain of 
the Port Maryland-National Capital Region or the Coast Guard Patrol 
Commander. We invite your comments on this proposed rule.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 9, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0203 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Mr. Ron Houck, U.S. Coast Guard 
Sector Maryland-National Capital Region; telephone 410-576-2674, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATCOM Coast Guard Patrol Commander
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    Enviro-Sports Productions, Inc. of Stinson Beach, CA, notified the 
Coast Guard that it will be conducting the Washington DC Sharkfest Swim 
between 7:30 a.m. and 10:30 a.m. on June 23, 2019. The inaugural open 
water amateur swim race consists of approximately 250 adult and youth 
athletes competing on a marked trapezoid course with three designated 
swim distances, including 1 Km, 2 Km and 4 Km. The course starts and 
finishes at the end of the commercial pier at National Harbor, MD. 
Hazards from the swim competition include participants swimming within 
and adjacent to the designated navigation channel and interfering with 
vessels intending to operate within that channel, as well as swimming 
within approaches to local public and private marinas and public boat 
facilities. The Captain of the Port (COTP) Maryland-National Capital 
Region has determined that potential hazards associated with the swim 
would be a safety concern for anyone intending to participate in this 
event or for vessels that operate within specified waters of the Upper 
Potomac River.
    The purpose of this rulemaking is to protect event participants, 
spectators and transiting vessels on certain waters of the Upper 
Potomac River before, during, and after the scheduled event. The Coast 
Guard proposes this rulemaking under authority in 46 U.S.C. 70041, 
which authorizes the Coast Guard to establish and define special local 
regulations.

III. Discussion of Proposed Rule

    The COTP Maryland-National Capital Region proposes to establish 
special local regulations from 7 a.m. through 11 a.m. on June 23, 2019. 
There is no alternate date planned for this event. The regulated area 
would cover all navigable waters of the Upper Potomac River, within an 
area bounded by a line connecting the following points: From the 
Rosilie Island shoreline at latitude 38[deg]47'30.30'' N, longitude 
077[deg]01'26.70 W, thence west to latitude 38[deg]47'30.00''

[[Page 14062]]

N, longitude 077[deg]01'37.30'' W, thence south to latitude 
38[deg]47'08.20'' N, longitude 077[deg]01'37.30'' W, thence east to 
latitude 38[deg]47'09.00'' N, longitude 077[deg]01'09.20'' W, thence 
southeast along the pier to latitude 38[deg]47'06.30'' N, longitude 
077[deg]01'02.50 W, thence north along the shoreline and west along the 
southern extent of the Woodrow Wilson (I-95/I-495) Memorial Bridge and 
south and west along the shoreline to the point of origin, located at 
National Harbor, MD. The regulated area is approximately 1,210 yards in 
length and 740 yards in width.
    The proposed duration of the special local regulations and size of 
the regulated area are intended to ensure the safety of life on these 
navigable waters before, during, and after the open water swim, 
scheduled from 7:30 a.m. to 10:30 a.m. on June 23, 2019. The COTP and 
the Coast Guard Patrol Commander (PATCOM) would have authority to 
forbid and control the movement of all vessels and persons, including 
event participants, in the regulated area. When hailed or signaled by 
an official patrol, a vessel or person in the regulated area would be 
required to immediately comply with the directions given by the COTP or 
PATCOM. If a person or vessel fails to follow such directions, the 
Coast Guard may expel them from the area, issue them a citation for 
failure to comply, or both.
    Except for Washington DC Sharkfest Swim participants and vessels 
already at berth, a vessel or person would be required to get 
permission from the COTP or PATCOM before entering the regulated area. 
Vessel operators can request permission to enter and transit through 
the regulated area by contacting the PATCOM on VHF-FM channel 16. 
Vessel traffic would be able to safely transit the regulated area once 
the PATCOM deems it safe to do so. A person or vessel not registered 
with the event sponsor as a participant or assigned as official patrols 
would be considered a spectator. Official Patrols are any vessel 
assigned or approved by the Commander, Coast Guard Sector Maryland-
National Capital Region with a commissioned, warrant, or petty officer 
on board and displaying a Coast Guard ensign.
    If permission is granted by the COTP or PATCOM, a person or vessel 
would be allowed to enter the regulated area or pass directly through 
the regulated area as instructed. Vessels would be required to operate 
at a safe speed that minimizes wake while within the regulated area. 
Official patrol vessels will direct spectator vessels while within the 
regulated area. Vessels would be prohibited from loitering within the 
navigable channel. Only participant vessels and official patrol vessels 
would be allowed to enter the race area.
    The regulatory text we are proposing appears at the end of this 
document.

IV. 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 and Executive orders and 
we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on size, time of day 
and duration of the regulated area, which would impact a small 
designated area of the Upper Potomac River for 4 hours. The Coast Guard 
would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 
about the status of the regulated area. Moreover, the rule would allow 
vessels to seek permission to enter the regulated area, and vessel 
traffic would be able to safely transit the regulated area once the 
PATCOM deems it safe to do so.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 certifies under 5 U.S.C. 605(b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    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.
    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 
section. 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.

C. Collection of Information

    This proposed rule would not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    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 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

[[Page 14063]]

E. 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.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.1D, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (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 implementation of regulations 
within 33 CFR part 100 applicable to organized marine events on the 
navigable waters of the United States that could negatively impact the 
safety of waterway users and shore side activities in the event area 
lasting for four hours. Normally such actions are categorically 
excluded from further review under paragraph L61 of Appendix A, Table 1 
of DHS Instruction Manual 023-01-001-01, Rev. 01. We seek any comments 
or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

G. 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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:  46 U.S.C. 70041; 33 CFR 1.05-1.


0
2. Add Sec.  100.501T05-0203 to read as follows:


Sec.  100.501T05-0203   Special Local Regulation; Upper Potomac River, 
National Harbor, MD.

    (a) Definitions. As used in this section:
    Captain of the Port (COTP) Maryland-National Capital Region means 
the Commander, U.S. Coast Guard Sector Maryland-National Capital Region 
or any Coast Guard commissioned, warrant or petty officer who has been 
authorized by the COTP to act on his behalf.
    Coast Guard Patrol Commander (PATCOM) means a commissioned, 
warrant, or petty officer of the U.S. Coast Guard who has been 
designated by the Commander, Coast Guard Sector Maryland-National 
Capital Region.
    Official Patrol means any vessel assigned or approved by Commander, 
Coast Guard Sector Maryland-National Capital Region with a 
commissioned, warrant, or petty officer on board and displaying a Coast 
Guard ensign.
    Participant means a person or vessel registered with the event 
sponsor as participating in the Washington DC Sharkfest Swim or 
otherwise designated by the event sponsor as having a function tied to 
the event.
    Spectator means a person or vessel not registered with the event 
sponsor as participants or assigned as official patrols.
    (b) Location. The following location is a regulated area. All 
navigable waters of the Upper Potomac River, within an area bounded by 
a line connecting the following points: From the Rosilie Island 
shoreline at latitude 38[deg]47'30.30'' N, longitude 077[deg]01'26.70 
W, thence west to latitude 38[deg]47'30.00'' N, longitude 
077[deg]01'37.30'' W, thence south to latitude 38[deg]47'08.20'' N, 
longitude 077[deg]01'37.30'' W, thence east to latitude 
38[deg]47'09.00'' N, longitude 077[deg]01'09.20'' W, thence southeast 
along the pier to latitude 38[deg]47'06.30'' N, longitude 
077[deg]01'02.50'' W, thence north along the shoreline and west along 
the southern extent of the Woodrow Wilson (I-95/I-495) Memorial Bridge 
and south and west along the shoreline to the point of origin, located 
at National Harbor, MD. All coordinates reference Datum NAD 1983.
    (c) Special local regulations: (1) The COTP Maryland-National 
Capital Region or PATCOM may forbid and control the movement of all 
vessels and persons, including event participants, in the regulated 
area. When hailed or signaled by an official patrol, a vessel or person 
in the regulated area shall immediately comply with the directions 
given by the patrol. Failure to do so may result in the Coast Guard 
expelling the person or vessel from the area, issuing a citation for 
failure to comply, or both. The COTP Maryland-National Capital Region 
or PATCOM may terminate the event, or a participant's operations at any 
time the COTP Maryland-National Capital Region or PATCOM believes it 
necessary to do so for the protection of life or property.
    (2) Except for participants and vessels already at berth, a person 
or vessel within the regulated area at the start of enforcement of this 
section must immediately depart the regulated area.
    (3) A spectator must contact the PATCOM to request permission to 
either enter or pass through the regulated area. The PATCOM, and 
official patrol vessels enforcing this regulated area, can be contacted 
on marine band radio VHF-FM channel 16 (156.8 MHz) and channel 22A 
(157.1

[[Page 14064]]

MHz). If permission is granted, the spectator must pass directly 
through the regulated area as instructed by PATCOM. A vessel within the 
regulated area must operate at safe speed that minimizes wake. A 
spectator vessel must not loiter within the navigable channel while 
within the regulated area.
    (4) A person or vessel that desires to transit, moor, or anchor 
within the regulated area must obtain authorization from the COTP 
Maryland-National Capital Region or PATCOM. A person or vessel seeking 
such permission can contact the COTP Maryland-National Capital Region 
at telephone number 410-576-2693 or on Marine Band Radio, VHF-FM 
channel 16 (156.8 MHz) or the PATCOM on Marine Band Radio, VHF-FM 
channel 16 (156.8 MHz).
    (5) The Coast Guard will publish a notice in the Fifth Coast Guard 
District Local Notice to Mariners and issue a marine information 
broadcast on VHF-FM marine band radio announcing specific event date 
and times.
    (d) Enforcement officials. The Coast Guard may be assisted with 
marine event patrol and enforcement of the regulated area by other 
Federal, State, and local agencies.
    (e) Enforcement period. This section will be enforced from 7 a.m. 
to 11 a.m. on June 23, 2019.

    Dated: April 2, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2019-06949 Filed 4-8-19; 8:45 am]
 BILLING CODE 9110-04-P