Safety Zone; Upper New York Bay, Liberty Island, NY

Federal Register, Volume 81 Issue 108 (Monday, June 6, 2016)

Federal Register Volume 81, Number 108 (Monday, June 6, 2016)

Rules and Regulations

Pages 36169-36171

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2016-13341

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

Docket Number USCG-2016-0318

RIN 1625-AA00

Safety Zone; Upper New York Bay, Liberty Island, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for navigable waters within a 100-yard radius of each participating swimmer during the Lady Liberty Sharkfest Swim. 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.

DATES: This rule is effective from 7:00 a.m. until 9:30 a.m. on July 16, 2016.

ADDRESSES: To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-

2016-0318 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email MST1 R.J. Sampert, Waterways Management Division, U.S. Coast Guard; telephone 718-354-4197, email ronald.j.sampert@uscg.mil.

SUPPLEMENTARY INFORMATION:

1. Table of Abbreviations

   CFR Code of Federal Regulations

   DHS Department of Homeland Security

   FR Federal Register

   NPRM Notice of proposed rulemaking

   Sec. Section

   U.S.C. United States Code

2. Background Information and Regulatory History

   The Coast Guard is issuing this temporary 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 NPRM with respect to this rule because it would be impractical and contrary to the public interest. The event sponsor was late in submitting the marine event application. This late submission did not give the Coast Guard enough time to publish an NPRM and receive comments, making that impracticable and contrary to the public interest in immediate action to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area.

   For the same reasons, we are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register.

3. Legal Authority and Need for Rule

   The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port New York (COTP) has determined that potential hazards associated with swim events occurring in high traffic areas of the Upper New York Harbor on July 16, 2016 will be a safety concern for anyone within a 100-yard radius of swimmers. This rule is needed to protect maritime public and event participants from the hazards associated with the swim event until the conclusion of the event.

4. Discussion of the Rule

   This rule establishes a safety zone from at 7:00 a.m. until 9:30 a.m. on July 16, 2016. The safety zone will cover all navigable waters within 100 yards of participating swimmers for the Lady Liberty Sharkfest Swim. The duration of the zone is intended to protect maritime public and event participants from the hazards associated with swim events taking place in a high vessel traffic area. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

5. Regulatory Analyses

   We developed this rule after considering numerous statutes and Executive order 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.

   1. 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. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a ``significant regulatory action,'' under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

      This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Upper New York Harbor in vicinity of Ellis and Liberty Islands for 2.5 hours and during a time of day when vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

      Page 36170

   2. 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 rule will not 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 V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

      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 section.

      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.

   3. 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).

   4. 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 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 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

   5. 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.

   6. 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 (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 a safety zone lasting approximately 2.5 hours that will prohibit entry within 100 yards of participating swimmers for the Lady Liberty Sharkfest Swim. It 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 will be 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.

   7. Protest Activities

      The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact 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.

      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 amends 33 CFR part 165 as follows:

      PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

      0

      1. The authority citation for part 165 continues to read as follows:

         Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-

         1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

         0

      2. Add Sec. 165.T01-0318 to read as follows:

         Sec. 165.T01-0318 Safety Zone; Upper New York Harbor, New York, NY.

         (a) Location. The following area is a safety zone: All waters of the Upper New York Harbor, from surface to bottom, 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, you may not 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 7:00 a.m. until 9:30 a.m. on July 16, 2016.

         Page 36171

         Dated: May 15, 2016.

         M.H. Day,

         Captain, U.S. Coast Guard, Captain of the Port, New York.

         FR Doc. 2016-13341 Filed 6-3-16; 8:45 am

         BILLING CODE 9110-04-P