[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Proposed Rules]
[Pages 22753-22756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9554]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-102]
RIN 1625-AA00


Safety Zones; Coast Guard Activities New York Fireworks Displays

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish five permanent safety 
zones for fireworks displays located in Pierhead Channel, NJ; Lower New 
York Bay; Raritan Bay; Long Island Sound; the Hudson River; and revise 
the section title. This action is necessary to protect the life and 
property of the maritime public from the hazards posed by these events. 
Entry into or movement within these proposed zones during the effective 
periods is prohibited without approval of the Captain of the Port 
(COTP), New York.

DATES: Comments and related material must reach the Coast Guard on or 
before May 27, 2004.

ADDRESSES: You may mail comments and related material to Waterways 
Oversight Branch (CGD01-03-102), Coast Guard Activities New York, 212 
Coast Guard Drive, room 203, Staten Island, NY 10305. The Waterways 
Oversight Branch of Coast Guard Activities New York maintains the 
public docket for this rulemaking. Comments and material received from 
the public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at the Waterways Oversight Branch, 
room 203, Coast Guard Activities New York, between 8 a.m. and 3 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander W. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4191.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD01-03-
102), indicate the specific section of this document to which each 
comment applies, and give the reason for each

[[Page 22754]]

comment. Please submit all comments and related material in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying. If 
you would like to know they reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Oversight Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    The Coast Guard proposes to establish five permanent safety zones 
that will be enforced for fireworks displays occurring throughout the 
year that are not held on an annual basis but are normally held in one 
of these five locations. The five locations are in Pierhead Channel, 
NJ, north of the Kill Van Kull Channel; Lower New York Bay, southeast 
of Midland Beach; Raritan Bay east of Wolfes Pond Park; Long Island 
Sound, east of Orchard Beach; and the Hudson River, east of Newburgh, 
NY. The Coast Guard received 14 applications for fireworks displays in 
these new areas between June and September 2003. There were no 
fireworks displays at these sites in calendar year 2000. A temporary 
safety zone was established for each display, with limited notice for 
preparation by the U.S. Coast Guard and limited opportunity for public 
comment. Establishing five permanent safety zones by notice and comment 
rulemaking would provide the public the opportunity to comment on the 
proposed zone locations, size, and length of time the zones will be 
active. The Coast Guard has not received notice of any impact to 
waterway traffic resulting from the enforcement of the zones. Marine 
traffic would still be able to pass safely around the proposed safety 
zones because the zone prohibits vessels from entering only the actual 
zone. Additionally, vessels would not be precluded from mooring at or 
getting underway from commercial or recreational piers in the vicinity 
of the proposed safety zones.
    This proposed rule would revise 33 CFR 165.168 by adding five 
permanent safety zones to the 34 existing ones and would revise the 
section's title to identify the Coast Guard Captain of the Port zone 
where the safety zones are located instead of listing all affected 
waterways.
    We also propose to remove the four figures in the regulation 
showing the overview of the safety zone locations. These will be made 
available in the ``USCG Notices'' section online at: http://www.harborops.com. Mariners are also able to plot these positions on 
their own navigation charts.
    This proposed rule and the current safety zones in 33 CFR 165.168 
are for fireworks displays using 12'' shells. We will enforce a smaller 
safety zone for displays in these locations that use fireworks shells 
smaller than 12''. However, the boundary will still be located within 
the listed safety zone boundary of this regulation for fireworks 
displays using shells smaller than 12''.

Discussion of Proposed Rule

Pierhead Channel, NJ Safety Zone

    The proposed safety zone includes all waters of Pierhead Channel 
and the Kill Van Kull within a 360 yard radius of the fireworks barge 
in approximate position 40[deg]39[min]18.8[sec] N, 
074[deg]04[min]39.1[sec] W (NAD 1983), about 315 yards north of the 
Kill Van Kull Channel. The proposed safety zone prevents vessels from 
transiting a portion of Pierhead Channel and the Kill Van Kull and is 
needed to protect the maritime public from the hazards associated with 
a marine fireworks event. Marine traffic would still be able to pass 
safely through the eastern 175 yards of the 460-yard wide Pierhead 
Channel, and the southern 360 yards of the 400-yard wide Kill Van Kull.

Midland Beach, Staten Island Safety Zone

    The proposed safety zone includes all waters of Lower New York Bay 
within a 500-yard radius of the fireworks barge in approximate position 
40[deg]34[min]12.0[sec] N, 074[deg]04[min]29.6[sec] W (NAD 1983), about 
800 yards southeast of Midland Beach. The proposed safety zone prevents 
vessels from transiting a portion of Lower New York Bay and is needed 
to protect the maritime public from the hazards associated with a 
marine fireworks event. Marine traffic would still be able to pass 
safely around the safety zone. The size of this proposed zone would be 
500 yards to allow for the vessels involved to be closer to shore if 
the Tides and Currents are favorable the night of the display. The size 
of the zone to be enforced during any fireworks display would be within 
360 yards of the fireworks barge. This 360-yard safety zone would be 
wholly contained within this proposed 500-yard safety zone.

Wolfes Pond Park, Staten Island Safety Zone

    The proposed safety zone includes all waters of Raritan Bay within 
a 500 yard radius of the fireworks barge in approximate position 
40[deg]30[min]52.1[sec] N 074[deg]10[min]58.8[sec] W (NAD 1983), about 
540 yards east of Wolfes Pond Park. The proposed safety zone would 
prevent vessels from transiting a portion of Raritan Bay and is needed 
to protect the maritime public from the hazards associated with a 
marine fireworks event. Marine traffic would still be able to pass 
safely around the safety zone. The size of this proposed zone would be 
500 yards to allow for the vessels involved to be closer to shore if 
the Tides and Currents are favorable the night of the display. The size 
of the zone to be enforced during any fireworks display would be within 
360-yards of the fireworks barge. This 360-yard safety zone would be 
wholly contained within this proposed 500-yard safety zone.

Orchard Beach, The Bronx, Safety Zone

    The proposed safety zone includes all waters of Long Island Sound 
in an area bound by the following points: 40[deg]51[min]43.5[sec] N 
073[deg]47[min]36.3[sec] W; thence to 40[deg]52[min]12.2[sec] N 
073[deg]47[min]13.6[sec] W; thence to 40[deg]52[min]02.5[sec] N 
073[deg]46[min]47.8[sec] W; thence to 40[deg]51[min]32.3[sec] N 
073[deg]47[min]09.9[sec] W (NAD 1983), thence to the point of origin. 
The proposed safety zone prevents vessels from transiting a portion of 
Long Island Sound and is needed to protect the maritime public from the 
hazards associated with a marine fireworks event. Marine traffic would 
still be able to pass safely around the safety zone. This safety zone 
is shaped to allow the sponsor the flexibility to use one or two barges 
per display.

Newburgh, NY, Safety Zone

    The proposed safety zone includes all waters of the Hudson River 
within a 360-yard radius of the fireworks barge in approximate position 
41[deg]30[min]01.2[sec] N 073[deg]59[min]42.5[sec] W (NAD 1983), about 
930 yards east of Newburgh, NY. The proposed safety zone prevents 
vessels from transiting a portion of the Hudson River and is needed to 
protect the maritime public from the hazards associated with a marine 
fireworks event. Marine traffic would still be able to pass safely 
around the safety zone.
    The proposed size of these safety zones was determined using 
National Fire Protection Association and New York City Fire Department 
standards for 12 inch mortars fired from a barge, combined with the 
Coast Guard's knowledge of tide and current conditions in the area. 
Proposed barge

[[Page 22755]]

locations and mortar sizes were adjusted to try and ensure the proposed 
safety zone locations would not interfere with any known marinas or 
piers.
    The Coast Guard does not know the actual dates that these safety 
zones will be enforced at this time. Coast Guard Activities New York 
will give notice of the enforcement of each safety zone by all 
appropriate means to provide the widest publicity among the affected 
segments of the public. This will include publication in the Local 
Notice to Mariners, electronic mail distribution, and on the Internet 
at http://www.harborops.com. Marine information and facsimile 
broadcasts may also be made for these events, beginning 24 to 48 hours 
before the event is scheduled to begin, to notify the public. The Coast 
Guard expects that the notice of the enforcement of each permanent 
safety zone in this rulemaking will normally be made between thirty and 
twenty one days before the zone is actually enforced. Fireworks barges 
used in the locations stated in this rulemaking will also have a sign 
on the port and starboard side of the barge labeled ``FIREWORKS--STAY 
AWAY''. This will provide on-scene notice that the safety zone is or 
will be enforced on that day. This sign will consist of 10'' high by 
1.5'' wide red lettering on a white background. There will also be a 
Coast Guard patrol vessel on scene 30 minutes before the display is 
scheduled to start until 15 minutes after its completion to enforce the 
safety zone.
    The effective period for these proposed safety zones is from 6 p.m. 
to 1 a.m. However, vessels may enter, remain in, or transit through 
these safety zones during this time frame if authorized by the Captain 
of the Port New York, or designated Coast Guard patrol personnel on 
scene, as provided for in 33 CFR 165.23. Generally, blanket permission 
to enter, remain in, or transit through these safety zones will be 
given except for the 45-minute period that a Coast Guard patrol vessel 
is present.
    This rule is being proposed to provide for the safety of life on 
navigable waters during the event and to give the marine community the 
opportunity to comment on the proposed zone locations, size, and length 
of time the zone will be active.

Regulatory Evaluation

    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 expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    This finding is based on the short amount of time that vessels 
would be restricted from the zones, and the small zone sizes positioned 
in low vessel traffic areas. Vessels may still transit through all 
Traffic Lanes to, and from, the Port of New York/New Jersey. Vessels 
may also still transit through Pierhead Channel, the Kill Van Kull, 
Lower New York Bay, Raritan Bay, western Long Island Sound, and the 
Hudson River during these events. Vessels would not be precluded from 
getting underway, or mooring at, any piers or marinas currently located 
in the vicinity of the proposed safety zones. Advance notifications 
would also be made to the local maritime community by the Local Notice 
to Mariners, electronic mail distribution, and on the Internet at 
http://www.harborops.com. Marine information and facsimile broadcasts 
may also be made to notify the public. Additionally, the Coast Guard 
anticipates that these safety zones will only be enforced 18-20 times 
per year.

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 
50,000.
    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 would affect the following entities, some of 
which might be small entities: the owners or operators of vessels 
intending to transit or anchor in a portion of Pierhead Channel, the 
Kill Van Kull, Lower New York Bay, Raritan Bay, western Long Island 
Sound, and the Hudson River, during the times these proposed zones are 
enforced.
    These proposed safety zones would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: Vessel traffic could pass safely around the safety zones. 
Vessels would not be precluded from getting underway, or mooring at, 
any piers or marinas currently located in the vicinity of the proposed 
safety zones. Generally, blanket permission to enter, remain in, or 
transit through these safety zones will be given except for the 45-
minute period that a Coast Guard patrol vessel is present. Before the 
effective period, we would issue maritime advisories widely available 
to users of the Port of New York/New Jersey by Local Notice to 
Mariners, electronic mail distribution, and on the Internet at http://www.harborops.com. Marine information and facsimile broadcasts may also 
be made.
    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 Lieutenant Commander W. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4191.

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

[[Page 22756]]

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 an expenditure, we do discuss the effects of this 
rule elsewhere in this preamble.

Taking of Private Property

    This proposed 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 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.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. This rule fits the category selected from 
paragraph (34)(g) as it would establish five safety zones.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

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 proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. In Sec.  165.168--
    a. Revise the section heading;
    b. Revise paragraph (a) introductory text, and add paragraphs 
(a)(10), (a)(11) and (a)(12);
    c. Revise paragraph (b) introductory text, and add paragraph 
(b)(11);
    d. Revise paragraph (c) introductory text;
    e. Revise paragraph (d) introductory text, and add paragraph 
(d)(12); and
    f. Remove figures 1 through 4 at the end of the section.
    g. In paragraph (f), remove the word ``Effective'' from the 
paragraph heading and add in its place the word ``Enforcement'' and in 
the first sentence of the paragraph remove the words ``is effective'' 
and add in their place the words ``will be enforced''.
    The revisions, removals, and additions read as follows:


Sec.  165.168  Safety Zones; Coast Guard Activities New York Fireworks 
Displays.

    (a) New York Harbor. The following areas are safety zones:
* * * * *
    (10) Pierhead Channel, NJ Safety Zone: All waters of Pierhead 
Channel and the Kill Van Kull within a 360-yard radius of the fireworks 
barge in approximate position 40[deg]39'18.8'' N 074[deg]04'39.1'' W 
(NAD 1983), approximately 315 yards north of the Kill Van Kull Channel.
    (11) Midland Beach, Staten Island Safety Zone: All waters of Lower 
New York Bay within a 500-yard radius of the fireworks barge in 
approximate position 40[deg]34'12.0'' N 074[deg]04'29.6'' W (NAD 1983), 
approximately 800 yards southeast of Midland Beach.
    (12) Wolfes Pond Park, Staten Island Safety Zone: All waters of 
Raritan Bay within a 500-yard radius of the fireworks barge in 
approximate position 40[deg]30'52.1'' N 074[deg]10'58.8'' W (NAD 1983), 
approximately 540 yards east of Wolfes Pond Park.
    (b) Western Long Island Sound. The following areas are safety 
zones:
* * * * *
    (11) Orchard Beach, The Bronx, Safety Zone: All waters of Long 
Island Sound in an area bound by the following points: 40[deg]51'43.5'' 
N 073[deg]47'36.3'' W; thence to 40[deg]52'12.2'' N 073[deg]47'13.6'' 
W; thence to 40[deg]52'02.5'' N 073[deg]46'47.8'' W; thence to 
40[deg]51'32.3'' N 073[deg]47'09.9'' W (NAD 1983), thence to the point 
of origin.
    (c) East River. The following areas are safety zones:
* * * * *
    (d) Hudson River. The following areas are safety zones:
* * * * *
    (12) Newburgh, NY, Safety Zone: All waters of the Hudson River 
within a 360-yard radius of the fireworks barge in approximate position 
41[deg]30'01.2'' N 073[deg]59'42.5'' W (NAD 1983), approximately 930 
yards east of Newburgh, NY.
* * * * *

    Dated: April 13, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-9554 Filed 4-26-04; 8:45 am]
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