[Federal Register Volume 75, Number 128 (Tuesday, July 6, 2010)]
[Rules and Regulations]
[Pages 38714-38716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16270]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0492]
RIN 1625-AA00


Safety Zone; Macy's Fourth of July Fireworks Display, Hudson 
River, New York, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Hudson River for the Macy's Fourth of July 
Fireworks Display. This temporary safety zone is necessary to protect 
spectators and vessels from the hazards associated with fireworks 
displays. This zone is intended to restrict vessel traffic from a 
portion of the Hudson River during the event.

DATES: This rule is effective from 7 p.m. on July 4, 2010 until 11 p.m. 
on July 5, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0492 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0492 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail LTJG Eunice James, Sector New York 
Waterways Management Division, Marine Events Branch. Coast Guard; 
telephone (718) 354-4163, e-mail [email protected]. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final 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 notice of proposed rulemaking (NPRM) 
with respect to this rule because sufficient information regarding the 
event was not received in time to publish a NPRM followed by a final 
rule before the effective date, thus making the publication of a NPRM 
impractical. The Coast Guard did not receive final details regarding 
the location of the fireworks launch barges and proposed locations for 
spectator vessel viewing areas necessary to ensure the safety of the 
event participants and spectators until the Macy's Fireworks 
Interagency meeting held on May 12, 2010. Immediate action is necessary 
to prevent vessel traffic from transiting a navigable portion of the 
Hudson River and to protect the maritime public from the inherent 
hazards associated with this fireworks event. A delay or cancellation 
of the event in order to allow for a notice and comment period is 
contrary to the public interest in having this event occur on July 4 as 
scheduled.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. The rule needs to become effective 
on the date specified above in order to provide for the safety of the 
public including spectators and vessels operating in the area near the 
fireworks display. Delaying the effective date of this rule until after 
30 days have elapsed since publication is impractical and a delay or 
cancellation of the fireworks event to accommodate the 30 day notice 
period is contrary to the public's interest in having the event occur 
on July 4th 2010.

Basis and Purpose

    This temporary safety zone is necessary to ensure the safety of 
vessels and spectators from hazards associated with the inherent 
explosive and flammable nature of a large fireworks display. Based on 
accidents that have occurred in other Captain of the Port zones, and 
the explosive hazards of fireworks, the Captain of the Port New York 
has determined that fireworks launches proximate to watercrafts pose 
significant risk to public safety and property. The combination of 
increased numbers of recreation vessels, congested waterways, darkness 
punctuated by bright flashes of light, and debris falling into the 
water has the potential to result in serious injuries or fatalities. 
This

[[Page 38715]]

temporary safety zone is intended to restrict vessels entering the area 
around the launch platforms to reduce the risk associated with the 
launch of fireworks.

Discussion of Rule

    The 34th Annual Macy's Fourth of July Fireworks is scheduled to 
occur on the waters of the Hudson River. This temporary safety zone is 
necessary to ensure the safety of spectators and vessels from hazards 
associated with the fireworks display.
    The fireworks display is scheduled to occur from 9:20 p.m. until 
9:50 p.m. In order to ensure the area is clear of persons and vessels 
before the display begins, and to allow sufficient time after the 
fireworks end to ensure no explosive hazards remain, this rule is 
effective and will be enforced from 7 p.m. until 11 p.m. on July 4, 
2010.
    If the event is cancelled due to inclement weather, then this 
regulation will be effective from 7 p.m. until 11 p.m. on July 5, 2010.
    The temporary safety zone will encompass all navigable waters of 
the Hudson River bounded by a line drawn east from approximate position 
40[deg]46'35.43'' N, 074[deg]00'37.53'' W in New Jersey; to a point in 
approximate position 40[deg]46'16.98'' N, 073[deg]59'52.34'' W in New 
York; thence south along the Manhattan shoreline to approximate 
position 40[deg]44'48.98'' N, 074[deg]00'41.06'' W; then west to 
approximate position 40[deg]44'55.91'' N, 074[deg]01'24.94'' W; then 
north along the New Jersey shoreline and back to the point of origin. 
All geographic coordinates are North American Datum of 1983 (NAD 83).
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port New York or the designated on-scene 
representative. Entry into, transiting, or anchoring within the 
regulated area is prohibited unless authorized by the Captain of the 
Port New York, or the designated on-scene representative. The Captain 
of the Port New York or the on-scene representative may be contacted 
via VHF Channel 16.
    Public notifications will be made prior to the event via the Local 
Notice to Mariners, and marine information broadcasts.

Regulatory Analyses

    We developed this 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 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.
    This determination is based on the limited time that vessels will 
be restricted from the zone. The temporary safety zone will only be in 
effect for approximately four hours during the evening. The Coast Guard 
expects insignificant adverse impact to mariners from the zone's 
activation as the event has been extensively advertised in the public. 
Also, affected mariners may request authorization from the Captain of 
the Port New York or the designated on-scene representative to transit 
the zone.

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 
may be small entities: The owners and operators of vessels intending to 
transit or anchor in a portion of the Hudson River, in the vicinity of 
New York City, NY from 7 p.m. to 11 p.m. on July 4th, 2010.
    This temporary safety zone will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: This rule will be in effect for only four hours on a single-
day during the late evening. The event is well-known and extensive 
advertisement has allowed for public notification. Although the 
temporary safety zone will apply to the entire width of the river, 
traffic will be allowed to pass through the area with the permission of 
the Captain of the Port New York or the designated on-scene 
representative. Before the effective period, we will issue maritime 
advisories widely available to users of the waterway.
    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 offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

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 (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.

[[Page 38716]]

Taking of Private Property

    This 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 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 may 
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 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 concluded 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves the establishment of a temporary 
safety zone on a portion of the Hudson River during the launching of 
fireworks. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and 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, 33306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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. A new temporary Sec.  165.T01-0492 is added as follows:


Sec.  165.T01-0492  Safety Zone; Macy's Fourth of July Fireworks 
Display, Hudson River, NY, New York

    (a) Regulated area. The following area is a temporary safety zone: 
All navigable waters of the Hudson River bounded by a line drawn east 
from approximate position 40[deg]46'35.43'' N, 074[deg]00'37.53'' W in 
New Jersey, to approximate position 40[deg]46'16.98'' N, 
073[deg]59'52.34'' W in New York, thence south along the Manhattan 
shoreline to approximate position 40[deg]44'48.98'' N, 
074[deg]00'41.06'' W, then west to approximate position 
40[deg]44'55.91'' N, 074[deg]01'24.94'' W, then north along the New 
Jersey shoreline and back to the point of origin. (NAD 83).
    (b) Effective period. This regulation is effective from 7 p.m. 
until 11 p.m. on July 4th, 2010, and if the fireworks display is 
postponed, it will be effective from 7 p.m. until 11 p.m. on July 5, 
2010.
    (c) Regulations. The general regulations contained in 33 CFR 165.23 
apply.
    (d) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into or movement within this zone is prohibited unless 
authorized by the Captain of the Port New York.
    (e) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port New York or the designated on-
scene-patrol personnel. These designated on-scene-patrol personnel 
comprise commissioned, warrant, and petty officers of the Coast Guard. 
Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light, or other means the operator of a vessel shall proceed 
as directed.

    Dated: June 14, 2010.
R.R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2010-16270 Filed 7-2-10; 8:45 am]
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