Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay and Hudson River, NY, 53769-53772 [2012-21717]

Download as PDF 53769 Rules and Regulations Federal Register Vol. 77, No. 171 Tuesday, September 4, 2012 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2 and 171 [NRC–2012–0062] RIN 3150–AJ14 Receipts-Based, Small Business Size Standard; Confirmation of Effective Date Nuclear Regulatory Commission. ACTION: Direct final rule; confirmation of effective date. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of August 22, 2012, for the direct final rule that appeared in the Federal Register of July 3, 2012 (77 FR 39385). This direct final rule amended the size standard that the NRC uses to qualify an NRC licensee as a ‘‘small entity’’ under the Regulatory Flexibility Act of 1980, as amended. The NRC is increasing its receipts-based, small business size standard from $6.5 million to $7 million to conform to the standard set by the Small Business Administration (SBA). This document confirms the effective date. DATES: The effective date of August 22, 2012, is confirmed for this direct final rule. ADDRESSES: Please refer to Docket ID NRC–2012–0062 when contacting the NRC about the availability of information for this direct final rule. You may access information and comment submittals related to this direct final rule, which the NRC possesses and are publicly available, by any of the following methods: • Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC–2012–0062. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may access publicly sroberts on DSK5SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 16:13 Aug 31, 2012 Jkt 226001 available documents online in the NRC Library at http://www.nrc.gov/readingrm/adams.html. To begin the search, select ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301–415–4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced in this document (if that document is available in ADAMS) is provided the first time that a document is referenced. • NRC’s PDR: You may examine and purchase copies of public documents at the NRC’s PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. FOR FURTHER INFORMATION CONTACT: Theresa Barczy, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: 301–492–3666, email: theresa.barczy@nrc.gov. On July 3, 2012 (77 FR 39385), the NRC published in the Federal Register a direct final rule amending its regulations in parts 2 and 171 of Title 10 of the Code of Federal Regulations. The direct final rule amended the size standard that the NRC uses to qualify an NRC licensee as a ‘‘small entity’’ under the Regulatory Flexibility Act of 1980, as amended. The NRC is increasing its receipts-based, small business size standard from $6.5 million to $7 million to conform to the standard set by the SBA. This document confirms the effective date. In the direct final rule, the NRC stated that if any significant adverse comments were received, a notice of timely withdrawal of the direct final rule would be published in the Federal Register. A significant adverse comment is one where a commenter explains why the rule would be inappropriate, including challenges to its underlying premise or approach, or would be ineffective, or unacceptable without a change. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule was effective as scheduled. SUPPLEMENTARY INFORMATION: Dated at Rockville, Maryland, this 28th day of August, 2012. PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 For the Nuclear Regulatory Commission. Cindy K. Bladey, Chief, Rules, Announcements, and Directives Branch, Division of Administrative Services, Office of Administration. [FR Doc. 2012–21630 Filed 8–31–12; 8:45 am] BILLING CODE 7590–01–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG–2012–0717] RIN 1625–AA00 Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay and Hudson River, NY Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: The Coast Guard is establishing a temporary safety zone on the navigable waters of Upper New York Bay, NY and the Lower Hudson River for the September 5, 2012 and September 15, 2012 Liberty to Freedom swim events. This temporary safety zone is necessary to protect the maritime public and event participants from the hazards associated with swim events. This rule is intended to restrict all vessels and persons from entering into, transiting through, mooring, or anchoring within the safety zone unless authorized by the Captain of the Port (COTP) New York or a designated representative. SUMMARY: This rule is effective from 9:30 a.m. on September 5, 2012 until 5 p.m. on September 15, 2012. This rule will be enforced from 9:30 a.m. until 11 a.m. on September 5, 2012 and from 3 p.m. until 5 p.m. on September 15, 2012. ADDRESSES: Documents mentioned in this preamble are part of docket USCG– 2012–0717. 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 DATES: E:\FR\FM\04SER1.SGM 04SER1 53770 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Rules and Regulations 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 LTJG Kristopher Kesting, Sector NY Waterways Management, U.S. Coast Guard; Telephone (718) 354–4154, EMail Kristopher.R.Kesting@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: 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 dates 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. For the same reason discussed above, 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. Table of Acronyms 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; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. This temporary safety zone is necessary to ensure the safety of swimmers and vessels from hazards associated with the swim events. sroberts on DSK5SPTVN1PROD with RULES DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking COTP Captain of the Port 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 sufficient information about the event was not received in time to publish a NPRM followed by a final rule before the effective date, thus making the publication of a NPRM impractical. The Coast Guard received the information about the events on July 14, 2012. Any delay encountered in this regulation’s effective date by publishing a NPRM would be contrary to public interest, because immediate action is needed to provide for the safety of life on the navigable waters from the hazards of swimming in the Upper New York Bay and the Lower Hudson River, particularly in the vicinity of the shipping channel. 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. The event sponsor is unable and unwilling to postpone this event because the dates of these events were chosen based on optimal tide, current, VerDate Mar<15>2010 16:13 Aug 31, 2012 Jkt 226001 C. Discussion of the Final Rule This rule establishes a temporary safety zone on the navigable waters of the Upper New York Bay and the Lower Hudson River, in the vicinity of Liberty Island, Jersey City, Manhattan, and Governors Island. All persons and vessels shall comply with the instructions of the Captain of the Port (COTP) New York or the designated representative during the enforcement of the temporary safety zone. Entering into, transiting through, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York, or the designated representative. Based on the inherent hazards associated with open water swimming, the COTP New York has determined that swimmers in close proximity to water crafts pose a significant risk to the swimmers and vessels. The combination of a high traffic area, congested waterways, and limited visibility of active swimmers have the potential to result in serious injuries or fatalities. This temporary safety zone will restrict vessels from a portion of the Upper New York Bay and Lower Hudson River around the location of the swimmers during the event. The Coast Guard has determined that this regulated area will not have a significant impact on vessel traffic due PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 to its temporary nature and the fact that vessels will be allowed to transit the navigable waters around the location of the swimmers in the regulated area. Advanced public notifications will also be made to local mariners through appropriate means, which will include, but are not limited to, the Local Notice to Mariners as well as Broadcast Notice to Mariners. 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 implementation of this temporary safety zone will be of short duration and is designed to minimize the impact to vessel traffic on the navigable waters. This temporary safety zone will only be enforced for approximately 2 hours. Due to the location, vessels will be able to transit around the zone in a safe manner. 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 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 events during the effective periods. (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 2 hours; vessel traffic could pass safely around the safety zone, and the Coast Guard will notify mariners before activating the zone by appropriate means including but not E:\FR\FM\04SER1.SGM 04SER1 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Rules and Regulations 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). sroberts on DSK5SPTVN1PROD with RULES 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 INTFORMATION 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 16:13 Aug 31, 2012 Jkt 226001 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 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. VerDate Mar<15>2010 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. 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 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 53771 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 the establishment of a temporary safety zone. This rule is 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 Marine safety, Navigation (water), Reporting and recordkeeping requirements, 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 AREA 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. 2. Add § 165.T01–0717 to read as follows: ■ § 165.T01–0717 Safety Zone; Liberty to Freedom Swim, Liberty Island, Upper Bay and Hudson River, NY. (a) Regulated Area. All navigable waters of the Upper New York Bay and lower Hudson River, NY, bound by the following points: position 40°41′16.4″ N, 074°02′57.3″ W, then northeast to position 40°41′57.0″ N, 074°02′07.3″ W, then north to position 40°42′25.9″ N, 074°02′04.6″ W, then northeast to position 40°42′51.2″ N, 074°01′03.2″ W, then south to position 40°42′16.5″ N, 074°01′07.1″ W, then southwest to position 40°41′03.6″ N, 074°02′34.6″ W, then back to the point of origin. (b) Effective Date. This rule is effective from 9:30 a.m. on September 5, 2012 until 5:00 p.m. on September 15, 2012. This rule will be enforced from 9:30 a.m. until 11:00 a.m. on September 5, 2012 and from 3:00 p.m. until 5:00 p.m. on September 15, 2012. (c) Definitions. The following definitions apply to this section: (1) Designated Representative. A ‘‘designated representative’’ is any Coast E:\FR\FM\04SER1.SGM 04SER1 sroberts on DSK5SPTVN1PROD with RULES 53772 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Rules and Regulations Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port Sector New York (COTP), to act on his or her behalf. The 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. (3) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels. (d) Regulations. (1) The general regulations contained in 33 CFR 165.23, as well as the following regulations, apply. (2) No vessels, except for event coordinators and support vessels, will be allowed to transit the safety zone without the permission of the COTP. Vessels not associated with the event that are permitted to enter the regulated areas shall maintain a separation of at least 100 yards from the participants. (3) All persons and vessels shall comply with the instructions of the COTP or the 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. Failure to comply with a lawful direction may result in expulsion from the regulated area, citation for failure to comply, or both. (4) Vessel operators desiring to enter or operate within the regulated area shall contact the COTP or the designated representative via VHF channel 16 or 718–354–4353 (Sector New York command center) to obtain permission to do so. (5) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, unless authorized by COTP or the designated representative. (6) The COTP or the designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property. Dated: August 20, 2012. G.A. Loebl, Captain, U.S. Coast Guard, Captain of the Port New York. [FR Doc. 2012–21717 Filed 8–31–12; 8:45 am] BILLING CODE 9110–04–P VerDate Mar<15>2010 16:13 Aug 31, 2012 Jkt 226001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R10–OAR–2012–0380; FRL– 9723–4] Approval and Promulgation of Air Quality Implementation Plans; Washington; Determination of Clean Data for the 2006 24-Hour Fine Particulate Standard for the Tacoma, Pierce County Nonattainment Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is making a final determination that the Tacoma, Pierce County nonattainment area (hereafter referred to as ‘‘Tacoma, Pierce County’’ or ‘‘the area’’) has clean data for the 2006 24-hour fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS). This determination is based upon complete, qualityassured, quality-controlled, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 PM2.5 NAAQS based on the 2009–2011 data available in EPA’s Air Quality System (AQS) database. EPA’s determination relieves the area from the requirements to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans (SIPs) related to attainment of the standard for so long as the area continues to meet the 24-hour 2006 PM2.5 NAAQS. DATES: Effective Date: This final rule is effective on October 4, 2012. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA–R10–OAR–2012–0380. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at EPA Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle WA, 98101. FOR FURTHER INFORMATION CONTACT: Jeff Hunt at telephone number: (206) 553– SUMMARY: PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 0256, email address: hunt.jeff@epa.gov, or the above EPA, Region 10 address. SUPPLEMENTARY INFORMATION: Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. I. What action is EPA taking? II. What is the effect of this action? III. Statutory and Executive Order Reviews I. What action is EPA taking? EPA is making a final determination that the Tacoma, Pierce County nonattainment area has clean data for the 2006 24-hour PM2.5 NAAQS. This determination is based upon complete, quality-assured, quality-controlled, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 PM2.5 NAAQS based on 2009–2011 monitoring data. On July 5, 2012 (77 FR 39657), EPA proposed a determination of clean data for the Tacoma, Pierce County nonattainment area. A discussion of the rationale behind this determination and the effect of the determination were included in the notice of proposed rulemaking. EPA received no comments on this notice of proposed rulemaking. II. What is the effect of this action? Under the provisions of EPA’s PM2.5 implementation rule (See 40 CFR 51.1004(c)), the requirements for the Tacoma, Pierce County nonattainment area to submit an attainment demonstration and associated reasonably available control measures (including reasonably available control technology), a reasonable further progress plan, contingency measures, and any other planning SIPs related to attainment of the 2006 PM2.5 NAAQS are suspended for so long as the area continues to meet the 24-hour 2006 PM2.5 NAAQS. If EPA subsequently determines that the area violates the 24hour 2006 PM2.5 NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR 51.1004(c), would no longer exist and the area would thereafter have to address the pertinent requirements. This action does not constitute a redesignation of the area to attainment for the 24-hour 2006 PM2.5 NAAQS under section 107(d)(3) of the Clean Air Act (CAA). Further, this action does not involve approving a maintenance plan for the area as required under section 175A of the CAA, nor does it find that the area has met all other requirements for redesignation. Even after this determination of attainment by EPA, the designation status of the area is nonattainment for the 24-hour 2006 PM2.5 NAAQS until such time as EPA E:\FR\FM\04SER1.SGM 04SER1

Agencies

[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Rules and Regulations]
[Pages 53769-53772]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21717]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0717]
RIN 1625-AA00


Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay 
and Hudson River, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of Upper New York Bay, NY and the Lower Hudson River 
for the September 5, 2012 and September 15, 2012 Liberty to Freedom 
swim events. This temporary safety zone is necessary to protect the 
maritime public and event participants from the hazards associated with 
swim events. This rule is intended to restrict all vessels and persons 
from entering into, transiting through, mooring, or anchoring within 
the safety zone unless authorized by the Captain of the Port (COTP) New 
York or a designated representative.

DATES: This rule is effective from 9:30 a.m. on September 5, 2012 until 
5 p.m. on September 15, 2012. This rule will be enforced from 9:30 a.m. 
until 11 a.m. on September 5, 2012 and from 3 p.m. until 5 p.m. on 
September 15, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0717. 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

[[Page 53770]]

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 LTJG Kristopher Kesting, Sector NY Waterways Management, 
U.S. Coast Guard; Telephone (718) 354-4154, E-Mail 
Kristopher.R.Kesting@uscg.mil. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826. If you have 
questions on viewing or submitting material to the docket, call Renee 
V. Wright, 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
COTP Captain of the Port

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 sufficient information about the 
event was not received in time to publish a NPRM followed by a final 
rule before the effective date, thus making the publication of a NPRM 
impractical. The Coast Guard received the information about the events 
on July 14, 2012. Any delay encountered in this regulation's effective 
date by publishing a NPRM would be contrary to public interest, because 
immediate action is needed to provide for the safety of life on the 
navigable waters from the hazards of swimming in the Upper New York Bay 
and the Lower Hudson River, particularly in the vicinity of the 
shipping channel.
    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. The event sponsor is unable and 
unwilling to postpone this event because the dates of these events were 
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 dates 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.
    For the same reason discussed above, 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.

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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.
    This temporary safety zone is necessary to ensure the safety of 
swimmers and vessels from hazards associated with the swim events.

C. Discussion of the Final Rule

    This rule establishes a temporary safety zone on the navigable 
waters of the Upper New York Bay and the Lower Hudson River, in the 
vicinity of Liberty Island, Jersey City, Manhattan, and Governors 
Island. All persons and vessels shall comply with the instructions of 
the Captain of the Port (COTP) New York or the designated 
representative during the enforcement of the temporary safety zone. 
Entering into, transiting through, or anchoring within the temporary 
safety zone is prohibited unless authorized by the COTP New York, or 
the designated representative.
    Based on the inherent hazards associated with open water swimming, 
the COTP New York has determined that swimmers in close proximity to 
water crafts pose a significant risk to the swimmers and vessels. The 
combination of a high traffic area, congested waterways, and limited 
visibility of active swimmers have the potential to result in serious 
injuries or fatalities. This temporary safety zone will restrict 
vessels from a portion of the Upper New York Bay and Lower Hudson River 
around the location of the swimmers during the event.
    The Coast Guard has determined that this regulated area will not 
have a significant impact on vessel traffic due to its temporary nature 
and the fact that vessels will be allowed to transit the navigable 
waters around the location of the swimmers in the regulated area.
    Advanced public notifications will also be made to local mariners 
through appropriate means, which will include, but are not limited to, 
the Local Notice to Mariners as well as Broadcast Notice to Mariners.

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 implementation of this temporary safety zone will 
be of short duration and is designed to minimize the impact to vessel 
traffic on the navigable waters. This temporary safety zone will only 
be enforced for approximately 2 hours. Due to the location, vessels 
will be able to transit around the zone in a safe manner.
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 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 events during the effective periods.
    (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 2 hours; vessel traffic could pass 
safely around the safety zone, and the Coast Guard will notify mariners 
before activating the zone by appropriate means including but not

[[Page 53771]]

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 
INTFORMATION 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.
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 the establishment of a temporary safety 
zone. This rule is 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

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, 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 AREA

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.T01-0717 to read as follows:


Sec.  165.T01-0717  Safety Zone; Liberty to Freedom Swim, Liberty 
Island, Upper Bay and Hudson River, NY.

    (a) Regulated Area. All navigable waters of the Upper New York Bay 
and lower Hudson River, NY, bound by the following points: position 
40[deg]41'16.4'' N, 074[deg]02'57.3'' W, then northeast to position 
40[deg]41'57.0'' N, 074[deg]02'07.3'' W, then north to position 
40[deg]42'25.9'' N, 074[deg]02'04.6'' W, then northeast to position 
40[deg]42'51.2'' N, 074[deg]01'03.2'' W, then south to position 
40[deg]42'16.5'' N, 074[deg]01'07.1'' W, then southwest to position 
40[deg]41'03.6'' N, 074[deg]02'34.6'' W, then back to the point of 
origin.
    (b) Effective Date. This rule is effective from 9:30 a.m. on 
September 5, 2012 until 5:00 p.m. on September 15, 2012. This rule will 
be enforced from 9:30 a.m. until 11:00 a.m. on September 5, 2012 and 
from 3:00 p.m. until 5:00 p.m. on September 15, 2012.
    (c) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast

[[Page 53772]]

Guard commissioned, warrant or petty officer of the U.S. Coast Guard 
who has been designated by the Captain of the Port Sector New York 
(COTP), to act on his or her behalf. The 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.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23, as well as the following regulations, apply.
    (2) No vessels, except for event coordinators and support vessels, 
will be allowed to transit the safety zone without the permission of 
the COTP. Vessels not associated with the event that are permitted to 
enter the regulated areas shall maintain a separation of at least 100 
yards from the participants.
    (3) All persons and vessels shall comply with the instructions of 
the COTP or the 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. Failure to comply with 
a lawful direction may result in expulsion from the regulated area, 
citation for failure to comply, or both.
    (4) Vessel operators desiring to enter or operate within the 
regulated area shall contact the COTP or the designated representative 
via VHF channel 16 or 718-354-4353 (Sector New York command center) to 
obtain permission to do so.
    (5) Spectators or other vessels shall not anchor, block, loiter, or 
impede the transit of event participants or official patrol vessels in 
the regulated areas during the effective dates and times, unless 
authorized by COTP or the designated representative.
    (6) The COTP or the designated representative may delay or 
terminate any marine event in this subpart at any time it is deemed 
necessary to ensure the safety of life or property.

    Dated: August 20, 2012.
G.A. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2012-21717 Filed 8-31-12; 8:45 am]
BILLING CODE 9110-04-P