Coast Guard Proposes Local Regulation on Lake Erie

The Coast Guard proposes to establish a permanent Special Local Regulation on Lake Erie, Lakeside, Ohio. This regulation is intended to regulate vessel movement in portions of Lake Erie during the annual Kelley's Island Swim. This special local regulated area is necessary to protect swimmers from vessel traffic.

Comments and related materials must be received by the Coast Guard on or before July 5, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-

2012-0386 using any one of the following methods:

    (1) Federal eRulemaking Portal:

    (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 email ENS Benjamin Nessia, Response Department, MSU 

Toledo, Coast Guard; telephone (419) 418-6040, email If you have questions on viewing or 

submitting material to the docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 202-366-9826.




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 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-2012-0386), 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 or by fax, mail, or hand 

delivery, but please use only one of these means. If you submit a 

comment online via, it will be considered received 

by the Coast Guard when the comment is successfully transmitted; a 

comment submitted via fax, hand delivery, or mail, will be considered 

as having been received by the Coast Guard when the comment is received 

at the Docket Management Facility. We recommend that you include your 

name and a mailing address, an email 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, 

click on the ``submit a comment'' box, which will then become 

highlighted in blue. In the ``Document Type'' drop down menu, select 

``Proposed Rule'' and insert ``USCG-2012-0386'' in the ``Keyword'' box. 

Click ``Search'' 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, 

click on the ``read comments'' box, which will then become highlighted 

in blue. In the ``Keyword'' box insert ``USCG-2012-0386'' and click 

``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' 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 



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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 



Basis and Purpose


    Each year an organized swimming event takes place in Lake Erie in 

which individuals swim the four miles between Lakeside and Kelley's 

Island, OH. The Captain of the Port Detroit has determined that 

swimmers in close proximity to watercraft and in the shipping channel 

pose extra and unusual hazards to public safety and property. Thus, the 

Captain of the Port Detroit has determined that establishing a Special 

Local Regulation around the location of the race's course will help 

ensure the safety of persons and property at these events and help 

minimize the associated risks.


Discussion of Proposed Rule


    To alleviate the extra and unusual hazards mentioned above, the 

Captain of the Port Detroit has determined that it is necessary to 

establish a Special Local Regulation. Accordingly, this proposed rule 

is intended to permanently establish a Special Local Regulation that 

coincides with the annual Kelley's Island Swim. The proposed Special 

Local Regulation will only be enforced annually on a single day in the 

second or third week in July from approximately 7:00 a.m. until 11:00 

a.m. Due to the presence of swimmers in the water between Lakeside, OH 

and Kelley's Island, OH, the Coast Guard proposes that all vessels 

transiting the swim route shall proceed at a no-wake speed and maintain 

extra vigilance for people in the water. In addition, it is proposed 

that all vessels in the area yield right-of-way to swimmers and event 

safety craft. On-scene representatives may direct vessels to transit 

within or avoid certain areas during the race.

    This proposed Special Local Regulation will encompass all navigable 

waters of the United States on Lake Erie, Lakeside OH, bound by a line 

extending from a point on land at the Lakeside dock at positions 

41[deg]32'51.96'' N; 082[deg]45'3.15'' W and 41[deg]32'52.21'' N; 

082[deg]45'2.19'' W and a line extending to Kelley's Island dock to 

positions 41[deg]35'24.59'' N; 082[deg]42'16.61'' W and 

41[deg]35'24.44'' N; 082[deg]42'16.04'' W. The Captain of the Port will 

notify the affected segments of the public of the enforcement of this 

proposed Special Local Regulation by all appropriate means. Means of 

notification will include an annual publication of a Notice of 

Enforcement (NOE) in the Federal Register. Also, means of notification 

may include Broadcast Notice to Mariners and Local Notice to Mariners.


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. It is not ``significant'' 

under the regulatory policies and procedures of the Department of 

Homeland Security (DHS). We conclude that this proposed rule is not a 

significant regulatory action because we anticipate that it will have 

minimal impact on the economy, will not interfere with other agencies, 

will not adversely alter the budget of any grant or loan recipients, 

and will not raise any novel legal or policy issues. The proposed 

Special Local Regulation will cover a relatively small area and exist 

for a relatively short time, and vessels will still be permitted to 

travel through the area, albeit with caution and reduced speed. Thus, 

restrictions on vessel movement within that particular area are 

expected to be minimal.


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 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 


    The Coast Guard certifies 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 will affect the following entities, some of 

which might be small entities: the owners and operators of vessels 

intending to transit or anchor in the portion Lake Erie, Lakeside, OH 

discussed above during the date and time of enforcement in the second 

or third week in July each year.

    This proposed Special Local Regulation will not have a significant 

economic impact on a substantial number of small entities for the same 

reasons discussed in above Regulatory Planning and Review section.

    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.


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 process. 

If this proposed rule would affect your small business, organization, 

or governmental jurisdiction and you have questions concerning its 

provisions or options for compliance, please contact ENS Benjamin 

Nessia, Response Department, MSU Toledo, Coast Guard; telephone (419) 

418-6040, email 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 calls for no new collection of information under 

the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).




    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


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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 proposed rule would not 

result in such an expenditure, we do discuss the effects of this 

proposed rule elsewhere in this preamble.


Taking of Private Property


    This proposed 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 proposed rule will meet 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 proposed rule is not an economically significant rule and 

will 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 will 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.




    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 that do not individually or cumulatively have a 

significant effect on the human environment. This proposed rule 

involves the establishment of a Special Local Regulation and is 

therefore categorically excluded under figure 2-1, paragraph (34)(h), 

of the Instruction. During the annual permitting process for this 

swimming event an environmental analysis will be conducted to include 

the effects of this proposed Special Local Regulation. Thus, no 

preliminary environmental analysis checklist or Categorical Exclusion 

Determination (CED) are required for this proposed rulemaking action. 

We seek any comments or information that may lead to the discovery of a 

significant environmental impact from this proposed rule.


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:




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



    Authority:  33 U.S.C. 1233.


    2. Add Sec.  100.921 Kelley's Island Swim, Lake Erie, Lakeside, OH.

    (a) Regulated Area. The regulated area includes all U.S. navigable 

waters of Lake Erie, Lakeside, OH, bound by a line extending from a 

point on land at the Lakeside dock at positions 41[deg]32'51.96'' N; 

082[deg]45'3.15'' W and 41[deg]32'52.21'' N; 082[deg]45'2.19'' W and a 

line extending to Kelley's Island dock to positions 41[deg]35'24.59'' 

N; 082[deg]42'16.61'' W and 41[deg]35'24.44'' N; 082[deg]42'16.04'' W. 

(Datum: NAD 83).

    (b) Special Local Regulations. The regulations of Sec.  100.901 

apply. Vessels transiting within the regulated area shall travel at a 

no-wake speed and remain vigilant for swimmers. Additionally, vessels 

shall yield right-of-way for event participants and event safety craft 

and shall follow directions given by event representatives during the 


    (c) Enforcement Period. These Special Local Regulations will be 

enforced annually on a single day in the second or third week in July 

from 7:00 a.m. until 11:00 a.m. The precise date and times of 

enforcement will be published annually in the Federal Register via a 

Notice of Enforcement.