[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Rules and Regulations]
[Pages 32428-32431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16072]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2009-0302]
RIN 1625-AA08


Special Local Regulation, Maggie Fischer Memorial Great South Bay 
Cross Bay Swim, Great South Bay, NY

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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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 provide for the swimmers' safety of 
life on the navigable waters of Great South Bay, NY. Entry into this 
regulated area is prohibited unless authorized by the Captain of the 
Port Long Island Sound, New Haven, CT.

DATES: This interim rule is effective July 23, 2009. Comments and 
related material must reach the Coast Guard on or before September 8, 
2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0302 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or e-mail: MSTC Christie Dixon, Prevention Department, USCG 
Sector Long Island Sound at 203-468-4459, <a href="/cdn-cgi/l/email-protection#bad9d2c8d3c9ced3df94d794ded3c2d5d4facfc9d9dd94d7d3d6"><span class="__cf_email__" data-cfemail="4e2d263c273d3a272b6023602a273621200e3b3d2d2960232722">[email protected]</span></a>. 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:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0302), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand delivery, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0302'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0302 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

[[Page 32429]]

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Regulatory Information

    The Coast Guard is issuing this interim 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 interim rulemaking (NPRM) 
with respect to this rule because the delay or cancellation of this 
event in order to permit a notice period would be contrary to the pubic 
interest. In order to balance the tradition of the Cross Bay Swim and 
the concern for the swimmers' safety, a special local regulation is 
essential despite the limited time available for public notice and 
comment. While this is an annual event, the date for the 2009 swim and 
subsequent permit application were not received by the Coast Guard in 
sufficient time to allow for a full notice and comment period; 
therefore, the Coast Guard is issuing this interim rule with a request 
for comments.
    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. In order to balance the tradition 
of the Cross Bay Swim and the concern for the swimmers' safety, a 
special local regulation is essential despite the limited time 
available for public notice and comment. While this is an annual event, 
the date for the 2009 swim and subsequent permit application were not 
received by the Coast Guard in sufficient time to allow for a full 
notice and comment period; therefore, the Coast Guard is issuing this 
interim rule with a request for comments.

Background and Purpose

    The Cross Bay Swim has been successfully held on and off from the 
early 1900s 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. Currently there is no regulation in place to protect 
the swimmers or safety craft from the hazards imposed by passing water 
traffic and other water related activities.
    To ensure the continued safety of the swimmers, safety craft and 
the boating public, the Coast Guard is establishing a special local 
regulation around the race course for the duration of the race, 
generally from 6:30 a.m. to 12:30 p.m. on the day of the race.

Discussion of Rule

    This regulation establishes a special local regulation on the 
navigable waters of Great South Bay, NY within 100 yards of the swim 
event race course which consists of the following points: Starting 
Point at the Fire Island Lighthouse Dock in approximate position 
40[deg]38'01'' N 073[deg]13'07'' N, northerly through approximate 
points 40[deg]38'52'' N 073[deg]13'09'' N, 40[deg]39'40'' N 
073[deg]13'30'' N, 40[deg]40'30'' N 073[deg]14'00'' N, and finishing at 
Gilbert Park, Brightwaters, NY at approximate position 40[deg]42'25'' N 
073[deg]14'52'' N. This action will limit vessel traffic in this 
portion of Great South Bay, NY to provide for the safety of swimmers, 
swimmer safety craft and the boating community from the hazards posed 
by vessels operating near persons participating in this open water 
swim.
    While the special local regulation will be permanent, it will only 
be active and enforceable for approximately six hours on a single 
specified day each July. Marine traffic that may safely do so, may 
transit outside of the area during the enforcement period, allowing 
navigation in all other portions of Great South Bay, NY not covered by 
this rule. Entry into this area would be prohibited unless authorized 
by the Captain of the Port, Long Island Sound or Designated On-scene 
Patrol Personnel. Any violation of the special local regulation 
described herein is punishable by, among others, civil and criminal 
penalties, in rem liability against the offending vessel, and license 
sanctions.

Regulatory Analyses

    We developed this interim 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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This regulation may have 
some impact on the public, but the potential impact would be minimized 
for the following reason: Vessels may transit in all areas of Great 
South Bay, NY other than the area of the special local regulation with 
minimal increased transit time and the special local regulation will 
only be enforced for approximately 6 hours on a single specified day 
each July.

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 
would 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 special local regulation 
would apply to the entire width of the bay, traffic would be allowed to 
pass through the regulated area, outside 100 yards of any swimmer, with 
the permission of the Captain of the Port or Designated On-scene Patrol 
Personnel. Before the activation of the special local regulation, we 
would issue maritime advisories widely available to users of the

[[Page 32430]]

waterway. For the reasons outlined in the Regulatory Evaluation section 
above, this rule will not have a significant impact on a substantial 
number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule would have a significant economic impact on it, 
please submit a comment (see ADDRESSES) explaining why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

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 so that they can better evaluate 
its effects on them and participate in the rulemaking. 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: MSTC Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, 
<a href="/cdn-cgi/l/email-protection#c2a1aab0abb1b6aba7ecafeca6abbaadac82b7b1a1a5ecafabae"><span class="__cf_email__" data-cfemail="2b48435942585f424e0546054f425344456b5e58484c05464247">[email protected]</span></a>. 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 would call 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 or more in any 
one year. Though this rule would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would not effect 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 would not create an 
environmental risk to health or risk to safety that might 
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 would not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

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 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 which 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 involves the promulgation of a 
special local regulation issued in conjunction with a marine event for 
which a permit is required. 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.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  33 U.S.C. 1233.


0
2. Add Sec.  100.124 to read as follows:


Sec.  100.124:  Maggie Fischer Memorial Great South Bay Cross Bay Swim, 
Great South Bay, New York.

    (a) Regulated area. All navigable waters of Great South Bay, NY 
within 100 yards of the swim event race course which consists of the 
following points: Starting Point at the Fire Island Lighthouse Dock in 
approximate position 40[deg]38[min]01[sec] N 073[deg]13[min]07[sec] N, 
northerly through approximate points 40[deg]38[min]52[sec] N 
073[deg]13[min]09[sec] N, 40[deg]39[min]40[sec] N 
073[deg]13[min]30[sec] N, 40[deg]40[min]30[sec] N 
073[deg]14[min]00[sec] N, and finishing at Gilbert Park, Brightwaters, 
NY at approximate position 40[deg]42[min]25[sec] N 
073[deg]14[min]52[sec] N.

[[Page 32431]]

    (b) Definitions. The following definition applies to this section: 
Designated On-scene Patrol Personnel, means any commissioned, warrant 
and petty officers of the U.S. Coast Guard operating Coast Guard 
vessels who have been authorized to act on the behalf of the Captain of 
the Port, Long Island Sound.
    (c) Special local regulation. (1) No person or vessel may enter, 
transit, or remain within the regulated area during the effective 
period of regulation unless they are officially participating in the 
Maggie Fischer Memorial Great South Bay Cross Bay Swim event or are 
otherwise authorized by the Designated On-scene Patrol Personnel.
    (2) All persons and vessels must comply with the instructions from 
Coast Guard Captain of the Port or the Designated On-scene Patrol 
Personnel. The Designated On-scene Patrol Personnel may delay, modify, 
or cancel the swim event as conditions or circumstances require.
    (3) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of the vessel must proceed 
as directed.
    (4) Persons and vessels desiring to enter the regulated area may 
request permission to enter from the designated on scene patrol 
personnel on VHF-16 or to the Captain of the Port, Long Island Sound 
via phone at (203) 468-4401.
    (d) Enforcement Period. This rule is enforced from 6:30 a.m. to 
12:30 p.m. on July 24th, 2009 and annually thereafter on a date in July 
to be specified in the Local Notice to Mariners and through marine 
broadcasts.

    Dated: June 17, 2009.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. E9-16072 Filed 7-7-09; 8:45 am]
BILLING CODE 4910-15-P


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