[Federal Register Volume 70, Number 68 (Monday, April 11, 2005)]
[Proposed Rules]
[Pages 18343-18346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7209]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-05-017]
RIN 2115-AA97


Safety Zone; Macy's July 4th Fireworks, East River and Upper New 
York Bay, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to modify the permanent safety zone 
for the annual Macy's July 4 fireworks

[[Page 18344]]

display. The modification is required to accommodate an added fireworks 
discharge site near Liberty Island, and necessary to provide for the 
safety of life on navigable waters during the event. This action is 
intended to restrict vessel traffic in portions of the East River, 
Hudson River, and Upper New York Bay during the duration of the Macy's 
July 4 fireworks event.

DATES: Comments and related material must reach the Coast Guard on or 
before May 11, 2005.

ADDRESSES: You may mail comments and related material to Waterways 
Management Division (CGD01-05-017), Coast Guard Activities New York, 
212 Coast Guard Drive, room 203, Staten Island, New York 10305. The 
Waterways Management Division 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 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 E. Morton, 
Waterways Management Division, Coast Guard Activities New York (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 (CGD01-05-
017), indicate the specific section of this document to which each 
comment applies, and give the reason for each 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 Management Division 
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 later notice in the Federal Register.

Background and Purpose

    The Coast Guard proposes to revise 33 CFR 165.166, the permanent 
safety zone for the annual Macy's July 4 fireworks displays in the East 
River and Upper New York Bay. The revision is designed to protect a 
third fireworks discharge location near Liberty Island, which was not 
anticipated by the original regulation. The safety zone now encompasses 
a portion of the East River from Roosevelt Island to Governor's Island 
and is defined as all waters of the East River east of a line drawn 
from the Fireboat Station Pier, Battery Park City, in approximate 
position 40[deg]42'15.4'' N 074[deg]01'06.8'' W (NAD 1983) to Governors 
Island Light (2) (LLNR 35010), in approximate position 40[deg]41'34.4'' 
N 074[deg]01'10.9'' W (NAD 1983); north of a line drawn from Governors 
Island, in approximate position 40[deg]41'25.3'' N 074[deg]00'42.5'' W 
(NAD 1983) to the southwest corner of Pier 9A, Brooklyn; south of a 
line drawn from East 47th Street, Manhattan through the southern point 
of Roosevelt Island to 46 Road, Brooklyn, and all waters of Newtown 
Creek west of the Pulaski Bascule Bridge. The proposed change would 
increase the size of the safety zone to include all waters of the Upper 
New York Bay south of a line drawn from Pier A (Fireboat Station Pier), 
Battery Park City, in approximate position 40[deg]42'15.4'' N 
074[deg]01'06.8'' W (NAD 1983) to the easternmost corner of the Ellis 
Island Security Zone, in approximate position 40[deg]41'57.6'' N 
074[deg]02'06.7'' W (NAD 1983); and north of a line drawn from Pier 7, 
Jersey City, NJ, in approximate position 40[deg]41'26.4'' N 
074[deg]03'17.3'' W (NAD 1983) to Liberty Island Lighted Gong Buoy 29 
(LLNR 34995), in approximate position 40[deg]41'02.2'' N 
074[deg]02'24.7'' W (NAD 1983), on to Governor's Island Extension Light 
(LLNR 35000), in approximate position 40[deg]41'08.3'' N 
074[deg]01'35.4'' W (NAD 1983).
    The proposed enforcement period for this expanded safety zone would 
remain unchanged from the previous regulation. The proposed expanded 
safety zone would continue to be enforced from 6:30 p.m. (e.s.t.) until 
11:30 p.m. (e.s.t.) on July 4 each year. If the event is cancelled due 
to inclement weather, then this proposed safety zone would be enforced 
from 6:30 p.m. (e.s.t.) until 11:30 p.m. (e.s.t.) on July 5. The 
proposed expanded safety zone prevents vessels from transiting these 
portions of the East River, Hudson River, and Upper New York Bay, and 
is needed to protect mariners from the hazards associated with 
fireworks launched from 6 barges in the area. No vessel may enter the 
safety zone without permission from the Captain of the Port, New York.
    This safety zone covers the minimum area needed and imposes the 
minimum restrictions necessary to ensure the protection of all vessels 
and the fireworks handlers aboard the barges.
    Public notifications will be made prior to the event via the Local 
Notice to Mariners, marine information broadcasts, facsimile, and 
Macy's waterways telephone hotline. In previous years this telephone 
hotline has been established in early June.

Discussion of Proposed Rule

    The proposed amendment to the Macy's July 4 fireworks display is 
needed to reflect an additional fireworks discharge location near 
Liberty Island. The sponsor has indicated that the City of Jersey City, 
NJ and the State of New Jersey will continue to request this location 
for future annual events. This expanded zone was delineated on July 4, 
2004 as a Coast Guard Vessel Traffic Service (VTS) Measure, as 
contemplated in 33 CFR 161.11.
    No changes to the existing regulation 33 CFR 165.166, other than 
the geographical expansion of the safety zone, are proposed in this 
notice. This event is held annually on July 4. If the event is 
cancelled due to inclement weather, then this event will be held on 
July 5.
    This rule is being proposed to provide for the safety of life on 
navigable waters during the event, to give the marine community the 
opportunity to comment on this expanded safety zone, and to ensure that 
the permanent regulations reflect the event specifications.
    The proposed size of this safety zone was determined using National 
Fire Protection Association and New York City Fire Department standards 
for 8 to 12 inch mortars fired from a barge, combined with the Coast 
Guard's knowledge of tide and current conditions in this area.

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

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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 safety zone temporarily closes a major portion of the East 
River and Upper New York Bay to vessel traffic. There is a regular flow 
of traffic through this area; however, the impact of this regulation is 
expected to be minimal for the following reasons: The limited duration 
of the event; the extensive, advance advisories that will be made to 
allow the maritime community to schedule transits before and after the 
event; the event is taking place at a late hour on a national holiday; 
the event has been held for twenty-three years in succession and is 
therefore anticipated annually; small businesses may experience an 
increase in revenue due to the event; advance notifications will be 
made to the local maritime community by the Local Notice to Mariners, 
marine information broadcasts, facsimile, and the event sponsor 
establishes and advertises a telephone hotline which waterways users 
may call prior to the event for details of the safety zone. This 
telephone number will be published via the Local Notice to Mariners and 
facsimile. The number is normally activated in early June each year.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
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 the East River or Upper 
New York Bay during the times these zones are activated.
    This safety zone would not have a significant economic impact on a 
substantial number of small entities for the following reasons: The 
limited duration of the event; the extensive, advance advisories that 
will be made to allow the maritime community to schedule transits 
before and after the event; the event is taking place at a late hour on 
a national holiday; the event has been held for twenty-three years in 
succession and is therefore anticipated annually; small businesses may 
experience an increase in revenue due to the event; advance 
notifications will be made to the local maritime community by the Local 
Notice to Mariners, marine information broadcasts, facsimile, and the 
event sponsor establishes and advertises a telephone hotline which 
waterways users may call prior to the event for details of the safety 
zone. This telephone number will be published via the Local Notice to 
Mariners and facsimile. The number is normally activated in early June 
each year.
    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 E. Morton, 
Waterways Management Division, Coast Guard Activities New York (718) 
354-4191. 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.

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 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 does not 
concern an environmental risk to health or risk to safety that may 
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

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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.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.1D, which guides 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 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, we believe that this rule should 
be categorically excluded, under figure 2-1, paragraph 34(g), of the 
Instruction, from further environmental documentation. This proposed 
rule fits paragraph 34(g) as it increases the size of an existing 
safety zone. A preliminary ``Environmental Analysis Check List'' is 
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, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

    2. Revise Sec.  165.166(a) to read as follows:


Sec.  165.166  Safety Zone; Macy's July 4th Fireworks, East River and 
Upper New York Bay, NY.

    (a) Regulated Area. The following area is a safety zone: All waters 
of the Upper New York Bay south of a line drawn from Pier A (Fireboat 
Station Pier), Battery Park City, in approximate position 
40[deg]42'15.4'' N 074[deg]01'06.8'' W (NAD 1983) to the easternmost 
corner of the Ellis Island Security Zone, in approximate position 
40[deg]41'57.6'' N 074[deg]02'06.7'' W (NAD 1983); north of a line 
drawn from Pier 7, Jersey City, NJ, in approximate position 
40[deg]41'26.4'' N 074[deg]03'17.3'' W (NAD 1983) to Liberty Island 
Lighted Gong Buoy 29 (LLNR 34995), in approximate position 
40[deg]41'02.2'' N 074[deg]02'24.7'' W (NAD 1983), on to Governor's 
Island Extension Light (LLNR 35000), in approximate position 
40[deg]41'08.3'' N 074[deg]01'35.4'' W (NAD 1983); all waters of the 
East River north of a line drawn from Governors Island, in approximate 
position 40[deg]41'25.3'' N 074[deg]00'42.5'' W (NAD 1983) to the 
southwest corner of Pier 9A, Brooklyn; south of a line drawn from East 
47th Street, Manhattan through the southern point of Roosevelt Island 
to 46 Road, Brooklyn; and all waters of Newtown Creek west of the 
Pulaski Bascule Bridge.
* * * * *

    Dated: March 25, 2005.
Glenn A. Wiltshire,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 05-7209 Filed 4-8-05; 8:45 am]
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