Safety Zone; Liberty to Freedom Swims, Liberty Island, Upper Bay and Hudson River, NY, 53769-53772 [2012-21717]
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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
https://www.regulations.gov and search
for Docket ID NRC–2012–0062.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may access publicly
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SUMMARY:
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available documents online in the NRC
Library at https://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.
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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 https://
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:
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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.
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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,
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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
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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
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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).
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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
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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.
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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
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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
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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]
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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:
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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
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]]>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 https://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
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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
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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
