[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
[Proposed Rules]
[Pages 11371-11373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04279]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0026]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
on the navigable waters of Upper New York Bay, in the vicinity of 
Liberty Island, within a 100-yard radius of each swimmer during the 
Lady Liberty Sharkfest Swim on July 16, 2022. The safety zone is needed 
to protect the maritime public and event participants from the hazards 
associated with swim events taking place in a high vessel traffic area. 
Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by the Captain of the Port New York or a 
designated representative. We invite your comments on this proposed 
rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 31, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0026 using the Federal Decision Making Portal at https://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 MST1 L. Gutierrez, Waterways 
Management Division, U.S. Coast Guard, telephone 718-354-4352, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port New York
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The Enviro-Sports Productions Inc. notified the Coast Guard that it 
will be conducting the Lady Liberty Sharkfest Swim on July 16, 2022, 
from 7:30 a.m. to 8:30 a.m. with approximately 200 participants and 
several support vessels. Participants will swim between Liberty Island, 
New York and Morris Canal, New Jersey. The Captain of the Port New York 
(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 proposed rule would establish temporary safety zones 
for the duration of the swim event.
    This rule would prevent vessels from entering into, transiting 
through, mooring or anchoring within a 100-yard radius of each 
participating swimmer during the period of enforcement unless 
authorized by the COTP, or the designated representative.
    The purpose of this rulemaking is to ensure the safety of vessels, 
event participants and the navigable waters within a 100 yard radius of 
swimmers until the conclusion of the scheduled swim event. The Coast 
Guard proposes this rulemaking under authority in 46 U.S.C. 70034 
(previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The Coast Guard is proposing to establish a temporary safety zone 
within 100 yards of each participants for the swim event on the 
navigable waters of the Upper New York Bay located between Liberty 
Island, New York and Morris Canal, New Jersey. A portion of the 
navigable waters will be closed during the effective period to all 
vessel traffic except patrol crafts. The swim event will occur from 
approximately 7:30 a.m. until approximately 8:30 a.m. on July 16, 2022. 
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 a.m. until approximately 10 a.m. on July 
16, 2022.
    Vessels will still be able to transit the surrounding area and may 
be authorized to transit through the proposed safety zone with the 
permission from the COTP or the designated representative. The COTP 
does not anticipate any negative impact on vessel traffic due to this 
proposed safety zone. 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. This proposed rule has not been designated a 
``significant regulatory action,'' under Executive Order 12866. 
Accordingly, this proposed rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. The Coast 
Guard's enforcement of this proposed safety zone will be of short 
duration, lasting only 3 hours. The proposed 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 proposed 
safety zone. Furthermore, vessels may be authorized to transit through 
the proposed safety zone with the permission of the COTP. The Coast 
Guard will issue a Broadcast Notice to Mariners via VHF-FM marine 
channel 16 about the zone, and the proposed rule allows vessels to seek 
permission to enter the zone.

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

[[Page 11372]]

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 proposed 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 proposed rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please call or email 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 call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section.

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 potential effects of 
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01, Rev. 1, associated implementing 
instructions, and Environmental Planning COMDTINST 5090.1 (series), 
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 the 
establishment of a safety zone lasting approximately 3 hours that will 
prohibit entry within 100 yards of participating swimmers for the Lady 
Liberty Sharkfest Swim. Normally such actions are categorically 
excluded from further review under paragraph L60(a) of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble. 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 call or email 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.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2022-0026 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. We review all comments received, but we will only 
post comments that address the topic of the proposed rule. We may 
choose not to post off-topic, inappropriate, or duplicate comments that 
we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

List of Subjects in 33 CFR Part 165

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

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

[[Page 11373]]

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.

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


Sec.  165. T01-0026  Safety Zone; Lady Liberty Sharkfest Swim, Upper 
New York Bay, Liberty Island, NY

    (a) Location. The following area is a safety zone: All navigable 
waters of the Upper New York Harbor, NY within a 100 yard radius of 
each participating swimmer during the Lady Liberty Sharkfest Swim.
    (b) Definitions. As used in this section, Designated Representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port New York (COTP) in the enforcement of the safety 
zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, no person or vessel may enter the safety zone 
described in paragraph (a) of this section unless authorized by the 
COTP or the COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative via VHF channel 16 or by phone at (718) 354-4353 (Sector 
New York Command Center). Those in the safety zone must comply with all 
lawful orders or directions given to them by the COTP or the COTP's 
designated representative.
    (d) Enforcement period. This section will be enforced from 7 a.m. 
through 10 a.m. on July 16, 2022.
    (e) Information broadcasts. The COTP or a designated representative 
will inform the public through Broadcast Notice to Mariners of any 
changes in the planned schedule.

     Dated: February 15, 2022.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2022-04279 Filed 2-28-22; 8:45 am]
BILLING CODE 9110-04-P