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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 100
          - [Docket No. USCG-2009-0302]
          - RIN 1625-AA08

# AGENCY:

Coast Guard, DHS.

# ACTION:

Final rule.

# SUMMARY:

The Coast Guard is establishing a permanent special local regulation on Great South Bay, NY between Gilbert Park, Brightwaters, NY and Fire Island Lighthouse Dock, Fire Island, NY due to the annual Maggie Fischer Memorial Great South Bay Cross Bay Swim. This special local regulation is necessary to protect swimmers, safety vessels and the boating public on the navigable waters of Great South Bay, NY. Entry into this zone is prohibited unless authorized by the Captain of the Port Long Island Sound, New Haven, CT.

# DATES:

This rule is effective June 28, 2010.

# ADDRESSES:

                        Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-0302 and are available online by going to                         *http://www.regulations.gov,*                         inserting USCG-2009-0302 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 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 e-mail: Chief Petty Officer Christie Dixon, Prevention Department, USCG Sector Long Island Sound at 203-468-4459,                         *christie.m.dixon@uscg.mil.*                         If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.                    

# SUPPLEMENTARY INFORMATION:

## Regulatory Information

                    On July 8, 2009 we published an Interim Rule with a request for comments entitled, Special Local Regulation, Maggie Fischer Memorial Great South Bay Cross Bay Swim, Great South Bay, NY, in the                     **Federal Register**                     (74 FR 32428). We did not receive any comments or requests for meetings in response to the Interim Rule.                

## Basis and Purpose

The Cross Bay Swim has been successfully held off and on from the early 1900's on the waters of Great South Bay, NY. This 5.25 mile swim has historically involved up to 100 swimmers and accompanying safety craft that travel along a course located directly north of the Fire Island Lighthouse Dock, NY and extending to Gilbert Park in Brightwaters, NY. Prior to this rule there was not a regulation in place to protect the swimmers or safety craft from the hazards imposed by marine traffic.

To ensure the continued safety of the swimmers, safety craft and the boating public, the Coast Guard is establishing a permanent special local regulation on the navigable waters of the Great South Bay, New York that would exclude all unauthorized persons and vessels from approaching within 100 yards of any swimmer or safety craft on the race course from 6:30 a.m. to 12:30 p.m. on the day of the race.

                    Entry into this zone is prohibited unless authorized by the Captain of the Port Long Island Sound or by designated on-scene patrol personnel. Any violation of the safety zone described herein is punishable by, among other things, civil and criminal penalties, in rem liability against the offending vessel, and the initiation of suspension or revocation proceedings against Coast                           ( print page 29892)                        Guard-issued merchant mariner credentials.                

## Discussion of Comments and Changes

A small number of changes are being made to minimize the size of the regulated area and reduce the burden on vessel traffic by minimizing the restrictions in the regulated area. Even though the bounds of the regulated area were discussed in the Small Entities section, and no comments were received, we are clarifying sections (a) and (c) to read as set forth in the regulatory text of this final rule.

The changes in the text redefined the regulated area from “within 100 yards of the swim event race course” to “within 100 yards from each swimmer or safety craft on the swim event race course” so the regulated area would not block the entire waterway. This will reduce the burden on vessels by allowing them to pass through the race course as long as they stay clear of the swimmers and safety craft.

                    Also, paragraph (d) has been revised to provide the public additional notice of enforcement dates and times through publication of an advance notice each year in the                     **Federal Register.**

## 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.

## Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

## Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit in those portions of Great South Bay, NY covered by the special local regulation. Although the safety zone would apply to the entire width of the bay, traffic would be allowed to pass through the zone, outside 100 yards of any swimmer or safety craft. Before the activation of the zone, we would issue maritime advisories widely available to users of the waterway. Additionally, the rule would only be in effect for a period of 6-7 hours for one day per year.

## Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the Interim Rule we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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.

## Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

## Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

## 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.

## 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.

## 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.

## 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.

## 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.

## Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

## Technical Standards

                    The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use                           ( print page 29893)                        voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (                    *e.g.,*                     specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.                

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

## 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 concluded 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 is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule finalizes the establishment of a special local regulation that was published as an Interim Rule with an invitation to comment on July 8, 2009. No comments were received that would affect the assessment of environmental impacts from this action. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under                     **ADDRESSES.**

# List of Subjects in 33 CFR Part 100

      - Marine safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Waterways

Accordingly, the interim rule amending 33 CFR part 100, which was published at 74 FR 32428 on July 8, 2009, is adopted as a final rule with the following changes:

# PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS

1. The authority citation for part 100 continues to read as follows: 

Authority:33 U.S.C. 1233.

2. In § 100.124, revise paragraphs (a), (c)(1), (c)(4), and (d) to read as follows: 

§ 100.124 

                            (a)                             *Regulated area.*                             All navigable waters of Great South Bay, NY within a 100 yard radius of each swimmer or safety craft on the swim event race course bounded by the following points: Starting Point at the Fire Island Lighthouse Dock in approximate position 40°38′01″ N 073°13′07″ W, northerly through approximate points 40°38′52″ N 073°13′09″ W, 40°39′40″ N 073°13′30″ W, 40°40′30″ N 073°14′00″ W, and finishing at Gilbert Park, Brightwaters, NY at approximate position 40°42′25″ N 073°14′52″ W.                        

* * * * *

                            (c)                             *Special local regulation.*                             (1) No person or vessel may enter, transit, or remain within 100 yards of any swimmer or safety craft within the regulated area during the enforcement period of this regulation unless they are officially participating in the Maggie Fischer Memorial Great South Bay Cross Bay Swim event or are otherwise authorized by the Captain of the Port Long Island Sound or by designated on-scene patrol personnel.                        

* * * * *

(4) Persons and vessels desiring to enter the regulated area within 100 yards of a swimmer or safety craft may request permission to enter from the designated on scene patrol personnel on VHF-16 or the Captain of the Port, Long Island Sound via phone at (203) 468-4401.

                            (d)                             *Enforcement Period.*                             This section will be enforced annually on a date to be determined each July. Public notification of the specific date and times of enforcement will be made each year via a Notice of Enforcement in the                             **Federal Register,**                             separate marine broadcasts and local notice to mariners.                        

Dated: May 3, 2010.

Daniel A. Ronan,

Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.

[FR Doc. 2010-12844 Filed 5-27-10; 8:45 am]

BILLING CODE 9110-04-P