Safety Zone; Lady Liberty Sharkfest Swim, Upper New York Harbor, Liberty Island, NY

CourtCoast Guard
Citation87 FR 11371
Record Number2022-04279
Published date01 March 2022
Federal Register, Volume 87 Issue 40 (Tuesday, March 1, 2022)
[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
                [Proposed Rules]
                [Pages 11371-11373]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-04279]
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                DEPARTMENT OF HOMELAND SECURITY
                Coast Guard
                33 CFR Part 165
                [Docket Number USCG-2022-0026]
                RIN 1625-AA00
                Safety Zone; Lady Liberty Sharkfest Swim, Upper New York Harbor,
                Liberty Island, NY
                AGENCY: Coast Guard, DHS.
                ACTION: Notice of proposed rulemaking.
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                SUMMARY: The Coast Guard proposes to establish a temporary safety zone
                on the navigable waters of Upper New York Bay, in the vicinity of
                Liberty Island, within a 100-yard radius of each swimmer during the
                Lady Liberty Sharkfest Swim on July 16, 2022. The safety zone is needed
                to protect the maritime public and event participants from the hazards
                associated with swim events taking place in a high vessel traffic area.
                Entry of vessels or persons into this zone is prohibited unless
                specifically authorized by the Captain of the Port New York or a
                designated representative. We invite your comments on this proposed
                rulemaking.
                DATES: Comments and related material must be received by the Coast
                Guard on or before March 31, 2022.
                ADDRESSES: You may submit comments identified by docket number USCG-
                2022-0026 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for
                Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
                instructions on submitting comments.
                FOR FURTHER INFORMATION CONTACT: If you have questions about this
                proposed rulemaking, call or email MST1 L. Gutierrez, Waterways
                Management Division, U.S. Coast Guard, telephone 718-354-4352, email
                [email protected].
                SUPPLEMENTARY INFORMATION:
                I. Table of Abbreviations
                CFR Code of Federal Regulations
                COTP Captain of the Port New York
                DHS Department of Homeland Security
                FR Federal Register
                NPRM Notice of proposed rulemaking
                Sec. Section
                U.S.C. United States Code
                II. Background, Purpose, and Legal Basis
                 The Enviro-Sports Productions Inc. notified the Coast Guard that it
                will be conducting the Lady Liberty Sharkfest Swim on July 16, 2022,
                from 7:30 a.m. to 8:30 a.m. with approximately 200 participants and
                several support vessels. Participants will swim between Liberty Island,
                New York and Morris Canal, New Jersey. The Captain of the Port New York
                (COTP) has determined that swimming events in close proximity to marine
                traffic pose significant risk to public safety and property. The
                combination of increased numbers of recreation vessels, congested
                waterways, and large numbers of swimmers in the water has the potential
                to result in serious injuries or fatalities. In order to protect the
                safety of all waterway users including event participants and
                spectators, this proposed rule would establish temporary safety zones
                for the duration of the swim event.
                 This rule would prevent vessels from entering into, transiting
                through, mooring or anchoring within a 100-yard radius of each
                participating swimmer during the period of enforcement unless
                authorized by the COTP, or the designated representative.
                 The purpose of this rulemaking is to ensure the safety of vessels,
                event participants and the navigable waters within a 100 yard radius of
                swimmers until the conclusion of the scheduled swim event. The Coast
                Guard proposes this rulemaking under authority in 46 U.S.C. 70034
                (previously 33 U.S.C. 1231).
                III. Discussion of Proposed Rule
                 The Coast Guard is proposing to establish a temporary safety zone
                within 100 yards of each participants for the swim event on the
                navigable waters of the Upper New York Bay located between Liberty
                Island, New York and Morris Canal, New Jersey. A portion of the
                navigable waters will be closed during the effective period to all
                vessel traffic except patrol crafts. The swim event will occur from
                approximately 7:30 a.m. until approximately 8:30 a.m. on July 16, 2022.
                In order to coordinate the safe movement of vessels within the area and
                to ensure that the area is clear of unauthorized persons and vessels
                before, during, and immediately after the swim event, this zone will be
                effective from approximately 7 a.m. until approximately 10 a.m. on July
                16, 2022.
                 Vessels will still be able to transit the surrounding area and may
                be authorized to transit through the proposed safety zone with the
                permission from the COTP or the designated representative. The COTP
                does not anticipate any negative impact on vessel traffic due to this
                proposed safety zone. The regulatory text we are proposing appears at
                the end of this document.
                IV. Regulatory Analyses
                 We developed this proposed rule after considering numerous statutes
                and Executive orders related to rulemaking. Below we summarize our
                analyses based on a number of these statutes and Executive orders, and
                we discuss First Amendment rights of protestors.
                A. Regulatory Planning and Review
                 Executive Orders 12866 and 13563 direct agencies to assess the
                costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits. This proposed rule has not been designated a
                ``significant regulatory action,'' under Executive Order 12866.
                Accordingly, this proposed rule has not been reviewed by the Office of
                Management and Budget (OMB).
                 This regulatory action determination is based on the size,
                location, duration, and time-of-day of the safety zone. The Coast
                Guard's enforcement of this proposed safety zone will be of short
                duration, lasting only 3 hours. The proposed safety zone will restrict
                access to only a small portion of the navigable waterways of the Upper
                New York Bay. Vessels will be able to navigate around the proposed
                safety zone. Furthermore, vessels may be authorized to transit through
                the proposed safety zone with the permission of the COTP. The Coast
                Guard will issue a Broadcast Notice to Mariners via VHF-FM marine
                channel 16 about the zone, and the proposed rule allows vessels to seek
                permission to enter the zone.
                B. Impact on Small Entities
                 The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
                amended, requires Federal agencies to consider the potential impact of
                regulations on small entities during rulemaking. 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
                proposed rule would not
                [[Page 11372]]
                have a significant economic impact on a substantial number of small
                entities.
                 While some owners or operators of vessels intending to transit the
                safety zone may be small entities, for the reasons stated in section
                IV.A above, this proposed rule would not have a significant economic
                impact on any vessel owner or operator.
                 If you think that your business, organization, or governmental
                jurisdiction qualifies as a small entity and that this proposed 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.
                 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. If the proposed rule
                would affect your small business, organization, or governmental
                jurisdiction and you have questions concerning its provisions or
                options for compliance, please call or email the person listed in the
                FOR FURTHER INFORMATION CONTACT section. 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.
                C. Collection of Information
                 This proposed rule would not call for a new collection of
                information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
                3520).
                D. Federalism and Indian Tribal Governments
                 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 proposed rule under that Order and
                have determined that it is consistent with the fundamental federalism
                principles and preemption requirements described in Executive Order
                13132.
                 Also, 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. If
                you believe this proposed rule has implications for federalism or
                Indian tribes, please call or email the person listed in the FOR
                FURTHER INFORMATION CONTACT section.
                E. 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 proposed rule would not
                result in such an expenditure, we do discuss the potential effects of
                this proposed rule elsewhere in this preamble.
                F. Environment
                 We have analyzed this proposed rule under Department of Homeland
                Security Directive 023-01, Rev. 1, associated implementing
                instructions, and Environmental Planning COMDTINST 5090.1 (series),
                which guide the Coast Guard in complying with the National
                Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
                a preliminary determination 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 proposed rule involves the
                establishment of a safety zone lasting approximately 3 hours that will
                prohibit entry within 100 yards of participating swimmers for the Lady
                Liberty Sharkfest Swim. Normally such actions are categorically
                excluded from further review under paragraph L60(a) of Appendix A,
                Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary
                Record of Environmental Consideration supporting this determination is
                available in the docket. For instructions on locating the docket, see
                the ADDRESSES section of this preamble. We seek any comments or
                information that may lead to the discovery of a significant
                environmental impact from this proposed rule.
                G. Protest Activities
                 The Coast Guard respects the First Amendment rights of protesters.
                Protesters are asked to call or email the person listed in the FOR
                FURTHER INFORMATION CONTACT section to coordinate protest activities so
                that your message can be received without jeopardizing the safety or
                security of people, places, or vessels.
                V. Public Participation and Request for Comments
                 We view public participation as essential to effective rulemaking,
                and will consider all comments and material received during the comment
                period. Your comment can help shape the outcome of this rulemaking. If
                you submit a comment, please include the docket number for this
                rulemaking, indicate the specific section of this document to which
                each comment applies, and provide a reason for each suggestion or
                recommendation.
                 Submitting comments. We encourage you to submit comments through
                the Federal Decision Making Portal at https://www.regulations.gov. To
                do so, go to https://www.regulations.gov, type USCG-2022-0026 in the
                search box and click ``Search.'' Next, look for this document in the
                Search Results column, and click on it. Then click on the Comment
                option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER
                INFORMATION CONTACT section of this proposed rule for alternate
                instructions.
                 Viewing material in docket. To view documents mentioned in this
                proposed rule as being available in the docket, find the docket as
                described in the previous paragraph, and then select ``Supporting &
                Related Material'' in the Document Type column. Public comments will
                also be placed in our online docket and can be viewed by following
                instructions on the https://www.regulations.gov Frequently Asked
                Questions web page. We review all comments received, but we will only
                post comments that address the topic of the proposed rule. We may
                choose not to post off-topic, inappropriate, or duplicate comments that
                we receive.
                 Personal information. We accept anonymous comments. Comments we
                post to https://www.regulations.gov will include any personal
                information you have provided. For more about privacy and submissions
                to the docket in response to this document, see DHS's eRulemaking
                System of Records notice (85 FR 14226, March 11, 2020).
                List of Subjects in 33 CFR Part 165
                 Harbors, Marine safety, Navigation (water), Reporting and
                recordkeeping requirements, Security measures, Waterways.
                 For the reasons discussed in the preamble, the Coast Guard is
                proposing to amend 33 CFR part 165 as follows:
                [[Page 11373]]
                PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
                0
                1. The authority citation for part 165 continues to read as follows:
                 Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
                6, and 160.5; Department of Homeland Security Delegation No.
                00170.1, Revision No. 01.2.
                0
                2. Add Sec. 165.T01.0026 to read as follows:
                Sec. 165. T01-0026 Safety Zone; Lady Liberty Sharkfest Swim, Upper
                New York Bay, Liberty Island, NY
                 (a) Location. The following area is a safety zone: All navigable
                waters of the Upper New York Harbor, NY within a 100 yard radius of
                each participating swimmer during the Lady Liberty Sharkfest Swim.
                 (b) Definitions. As used in this section, Designated Representative
                means a Coast Guard Patrol Commander, including a Coast Guard coxswain,
                petty officer, or other officer operating a Coast Guard vessel and a
                Federal, State, and local officer designated by or assisting the
                Captain of the Port New York (COTP) in the enforcement of the safety
                zone.
                 (c) Regulations. (1) Under the general safety zone regulations in
                subpart C of this part, no person or vessel may enter the safety zone
                described in paragraph (a) of this section unless authorized by the
                COTP or the COTP's designated representative.
                 (2) To seek permission to enter, contact the COTP or the COTP's
                representative via VHF channel 16 or by phone at (718) 354-4353 (Sector
                New York Command Center). Those in the safety zone must comply with all
                lawful orders or directions given to them by the COTP or the COTP's
                designated representative.
                 (d) Enforcement period. This section will be enforced from 7 a.m.
                through 10 a.m. on July 16, 2022.
                 (e) Information broadcasts. The COTP or a designated representative
                will inform the public through Broadcast Notice to Mariners of any
                changes in the planned schedule.
                 Dated: February 15, 2022.
                Z. Merchant,
                Captain, U.S. Coast Guard, Captain of the Port New York.
                [FR Doc. 2022-04279 Filed 2-28-22; 8:45 am]
                BILLING CODE 9110-04-P
                

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