[Federal Register Volume 69, Number 130 (Thursday, July 8, 2004)]
[Rules and Regulations]
[Pages 41196-41199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15559]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 zones during the enforcement 
periods is prohibited without approval of the Captain of the Port 
(COTP), New York.

DATES: This rule is effective as of August 9, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket (CGD01-03-102) and are 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:

Regulatory Information

    On April 27, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled Safety Zones; Coast Guard Activities New York Fireworks 
Displays in the Federal Register 69 FR 22753. We received no letters 
commenting on the

[[Page 41197]]

proposed rule. No public hearing was requested, and none was held.

Background and Purpose

    The Coast Guard is establishing 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 provided the public the opportunity to comment on the 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 will still 
be able to pass safely around the safety zones because the zone 
prohibits vessels from entering only the actual zone. Additionally, 
vessels will not be precluded from mooring at or getting underway from 
commercial or recreational piers in the vicinity of the safety zones.
    This rule amends 33 CFR 165.168 by adding five permanent safety 
zones to the 34 existing ones and revises 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 removed the four figures in the regulation showing the 
overview of the safety zone locations. These are 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 rule, and the current effective 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''. The five safety 
zones are:

Pierhead Channel, NJ Safety Zone

    The 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]39'18.8'' N, 074[deg]04'39.1'' W (NAD 
1983), about 315 yards north of the Kill Van Kull Channel. The 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 will 
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 safety zone includes all waters of Lower New York Bay within a 
500-yard radius of the fireworks barge in approximate position 
40[deg]34'12.0'' N, 074[deg]04'29.6'' W (NAD 1983), about 800 yards 
southeast of Midland Beach. The 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 will still be able to pass safely around the 
safety zone. The size of this zone is 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 will be within 360-yards of the fireworks 
barge. This 360-yard safety zone will be wholly contained within this 
500-yard safety zone.

Wolfes Pond Park, Staten Island Safety Zone

    The safety zone includes 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), about 540 yards east 
of Wolfes Pond Park. The safety zone prevents 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 will still be able to pass safely around the safety zone. The 
size of this zone is 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 will be within 360-yards of the fireworks barge. This 360-yard 
safety zone will be wholly contained within this 500-yard safety zone.

Orchard Beach, The Bronx, Safety Zone

    The safety zone includes 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. The 
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 will still be 
able to pass safely around the safety zone. This safety zone is shaped 
like a block to allow the sponsor the flexibility to use one or two 
barges per display.

Newburgh, NY, Safety Zone

    The safety zone includes 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), about 930 yards east 
of Newburgh, NY. The 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 will still be able to pass safely around the safety 
zone.
    The 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. Barge locations 
and mortar sizes were adjusted to try and ensure the safety zone 
locations do 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

[[Page 41198]]

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 enforcement period for these 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.

Discussion of Comments and Changes

    The Coast Guard received no letters commenting on the proposed 
rulemaking. No changes were made to this rulemaking.

Regulatory Evaluation

    This 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 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 will 
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 will not be precluded from getting 
underway, or mooring at, any piers or marinas currently located in the 
vicinity of the safety zones. Advance notifications will also be made 
to the local maritime community by the Local Notice to Mariners, 
electronic mail distribution, and in the ``USCG Notices'' section 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 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 rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will 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 zones are enforced.
    These safety zones will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessel 
traffic can pass safely around the safety zones. Vessels will not be 
precluded from getting underway, or mooring at, any piers or marinas 
currently located in the vicinity of the 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 will issue 
maritime advisories widely available to users of the Port of New York/
New Jersey by Local Notice to Mariners, electronic mail distribution, 
and in the ``USCG Notices'' section 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 will 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 will 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 offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. However, 
we received no requests for assistance from small entities.
    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).

Collection of Information

    This rule calls 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 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 rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and

[[Page 41199]]

Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

    This 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 rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this 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.
    A ``Categorical Exclusion Determination'' is available in the 
docket for inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

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


0
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. 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.


0
2. In Sec.  165.168--
0
a. Revise the section heading;
0
b. Revise paragraph (a) introductory text and add paragraphs (a)(10), 
(a)(11) and (a)(12);
0
c. Revise paragraph (b) introductory text and add paragraph (b)(11);
0
d. Revise paragraph (c) introductory text;
0
e. Revise paragraph (d) introductory text, and add paragraph (d)(12);
0
f. 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''; and
0
g. Remove figures 1 through 4 at the end of the section.
    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: June 29, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-15559 Filed 7-7-04; 8:45 am]
BILLING CODE 4910-15-P