[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Rules and Regulations]
[Pages 30802-30804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10846]


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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, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters 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.

DATES: This rule is effective from 7 a.m. until 10 a.m. on July 16, 
2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0026 in the ``SEARCH'' box and click ``SEARCH.'' Next, in the 
Document Type column, select ``Supporting & Related Material.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
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
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The event sponsor 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. In response, on March 1, 2022, the 
Coast Guard published a notice of proposed rulemaking (NPRM) titled 
``Safety Zone; Lady Liberty Sharkfest Swim, Upper New York Harbor, 
Liberty Island, NY'' (87 FR 11371). There we stated why we issued the 
NPRM, and invited comments on our proposed regulatory action related to 
this marine event. During the comment period that ended March 31, 2022, 
we received one comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port New York 
(COTP) has determined that potential hazards associated with swim 
events occurring in high traffic areas of the Upper New York Harbor on 
July 16, 2022, will be a safety concern for anyone within a 100-yard 
radius of swimmers. The purpose of this rule is to protect maritime 
public and event participants from the hazards associated with the swim 
event until the conclusion of the event.

IV. Discussion of the Rule

    As noted above, we received one comment on our NPRM published March 
1, 2022. This comment was in support of the rule. There are no changes 
in the regulatory text of this rule from the proposed rule in the NPRM.
    This rule establishes a temporary safety zone within 100 yards of 
each participant 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 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 safety 
zone.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive order 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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. Vessel traffic 
will be able to safely transit around this safety zone which will 
impact a small designated area of the Upper New York Harbor in vicinity 
of Ellis and Liberty Islands for 3 hours and during a time of day when 
vessel traffic is normally low. Moreover, the Coast Guard will issue 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zone and the 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

[[Page 30803]]

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 zero comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A. above, this rule will not have a significant economic impact on 
any vessel owner or operator.
    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 
section.
    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.

C. 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).

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 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 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

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

F. Environment

    We have analyzed this 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 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 a 
safety zone lasting approximately 3 hours that will prohibit entry 
within 100 yards of participating swimmers for the Lady Liberty 
Sharkfest Swim. It is 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 Record of Environmental Consideration for 
Categorically Excluded Actions is available in the docket where 
indicated under ADDRESSES.

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.

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 amends 
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:  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 Harbor, Liberty Island NY.

    (a) Location. The following area is a safety zone: All waters of 
the Upper New York Harbor, from surface to bottom, 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, you may not 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.

[[Page 30804]]

    (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: May 16, 2022.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 2022-10846 Filed 5-19-22; 8:45 am]
BILLING CODE 9110-04-P