[Federal Register Volume 74, Number 138 (Tuesday, July 21, 2009)]
[Proposed Rules]
[Pages 35834-35837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17244]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2009-0395]
RIN 1625-AA08


Special Local Regulation, Swim Across the Sound, Long Island 
Sound, Port Jefferson, NY to Captain's Cove Seaport, Bridgeport, CT

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent special 
local regulation on the navigable waters of Long Island Sound between 
Port Jefferson, NY and Captain's Cove Seaport, Bridgeport, CT for the 
annual Swim Across the Sound event. This special local regulation is 
necessary to provide for the swimmers' safety on the navigable waters 
of Long Island Sound. Under this proposed regulation, persons and 
vessels are prohibited from entering the regulated area during this 
annual event unless entry is authorized by the Captain of the Port Long 
Island Sound or by designated on-scene patrol personnel.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 20, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0395 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 proposed 
rule, call or e-mail: Chief Petty Officer Christie Dixon, Prevention 
Department, USCG Sector Long Island Sound at 203-468-4459, e-mail 
<a href="/cdn-cgi/l/email-protection#086b607a617b7c616d2665266c61706766487d7b6b6f26656164"><span class="__cf_email__" data-cfemail="ef8c879d869c9b868ac182c18b86978081af9a9c8c88c1828683">[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-2009-0395), 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

[[Page 35835]]

material online (via http://www.regulations.gov) or by fax, mail, or 
hand deliver, 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 deliver, 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-2009-0395'' 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-2009-0395 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.

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.

Background and Purpose

    The Swim Across the Sound has been successfully held for over 
twenty years on the waters of Long Island Sound between Port Jefferson, 
NY and Bridgeport, CT. This 25 KM swim has historically involved over 
200 swimmers and accompanying safety craft. The swim course is located 
directly northwest of Port Jefferson, NY and extends to Captain's Cove 
Seaport, Bridgeport, CT. 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 proposing to establish a special 
local regulation that would prohibit unauthorized persons and vessel 
traffic from approaching within 100 yards of the swim participants as 
they proceed along the race course. This action is intended to increase 
the safety of the swimmers, the swimmer's safety craft and the boating 
community from the hazards posed by vessels operating near persons 
participating in this open water swim.

Discussion of Proposed Rule

    The Coast Guard proposes to establish a permanent special local 
regulation on the navigable waters of Long Island Sound to exclude all 
unauthorized persons and vessels from approaching within 100 yards away 
from any swimmer and/or the planned race course. The regulated area is 
bounded by the following approximate points: Starting Point of Port 
Jefferson Beach 40[deg]58'11.71'' N, 073[deg]05'51.12'' W, north 
westerly to the finishing point at Captain's Cove Seaport at 
approximate position 41[deg]09'25.07'' N, 073[deg]12'47.82'' W. The 
duration of the event, and thus the enforcement period of the special 
local regulation, is generally from 8:30 a.m. to 7:30 p.m. on the day 
of the race.
    While the special local regulation will be permanent, it will only 
be enforced for approximately 11 hours on the day of the race normally 
held on a single day in August. Marine traffic that may safely do so 
may transit outside of the area during the enforcement period, allowing 
navigation in all other portions of Long Island Sound not covered by 
this rule. Within the regulated area, approaching within 100 yards of 
any swimmer would be prohibited unless authorized by the Captain of the 
Port Long Island Sound or designated on-scene patrol personnel. 
Notification of the race date and subsequent enforcement of the special 
local regulation will be made via marine broadcasts and broadcast 
notice to mariners. This rule would be effective annually on a date in 
August to be specified in the Federal Register. 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 proposed 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 proposed 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 proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. This 
regulation may have some impact on the public, but any potential impact 
would be minimized for the following reason: Vessels may transit in all 
areas of Long Island Sound, other than within 100 yards of event 
participants within the regulated area; thus vessel traffic would be 
allowed to pass through the regulated area during the event as long as 
they remained outside 100 yards of any swimmer. Further, vessels would 
only have minimal increased transit time and the special local 
regulation will only be enforced for approximately 11 hours on a single 
specified day each August, made publicly known in advance of the 
scheduled event.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a

[[Page 35836]]

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 that under 5 U.S.C. 605(b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. This proposed 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 Long 
Island Sound covered by the special local regulation. Before the 
activation of the zone, we would issue maritime advisories in advance 
of the event and make them widely available to users of the 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 proposed 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#5e3d362c372d2a373b7033703a372631301e2b2d3d3970333732"><span class="__cf_email__" data-cfemail="b7d4dfc5dec4c3ded299da99d3decfd8d9f7c2c4d4d099dadedb">[email protected]</span></a>. The Coast Guard will not retaliate against 
small entities that question or complain about this proposed rule or 
any policy or action of the Coast Guard.

Collection of Information

    This proposed 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 proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

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

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves the promulgation of special local regulations in 
conjunction with a permitted marine event and falls under the category 
of actions under paragraph 34(h) of the instruction for which further 
environmental analysis is not normally required. We seek any comments 
or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

[[Page 35837]]

List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 100 as follows:

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. Add Sec.  100.125 to read as follows:


Sec.  100.125  Swim Across the Sound, Long Island Sound, Port 
Jefferson, NY to Captain's Cove Seaport, Bridgeport, CT.

    (a) Regulated area. All navigable waters of Long Island Sound 
within 100 yards of the swim event race course consisting of the 
following points: Starting Point at Port Jefferson Beach at approximate 
position 40[deg]58'11.71'' N, 073[deg]05'51.12'' W, north-westerly to 
the finishing point at Captain's Cove Seaport at approximate location 
41[deg]09'25.07'' N, 073[deg]12'47.82'' W.
    (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 regulations. (1) No person or vessel may approach 
or remain within 100 yards of any swimmer within the regulated area 
during the enforcement period of this regulation unless they are 
officially participating in the Swim Across the Sound event or are 
otherwise authorized by the Captain of the Port Long Island Sound or by 
Designated On-scene Patrol Personnel.
    (2) All persons and vessels must comply with the instructions from 
the 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 within 
100 yards of a swimmer may request permission to enter from the 
designated on scene patrol personnel by contacting them on VHF-16 or by 
a request to the Captain of the Port Long Island Sound via phone at 
(203) 468-4401.
    (d) Enforcement Period. This rule is enforced annually on a date in 
August. Notification of the specific date and enforcement of the 
special local regulation will be made via Notice in the Federal 
Register, marine broadcasts and local Notice to Mariners.

    Dated: June 17, 2009.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port Long Island Sound.
[FR Doc. E9-17244 Filed 7-20-09; 8:45 am]
BILLING CODE 4910-15-P


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