[Federal Register Volume 76, Number 122 (Friday, June 24, 2011)]
[Rules and Regulations]
[Pages 37002-37005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15788]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0475]
RIN 1625-AA00


Safety Zone; Central Astoria Independence Celebration Fireworks 
Event, Wards Island, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
Captain of the Port (COTP) Zone New York on a portion of the navigable 
waters of the East River in the vicinity of Wards Island, New York for 
a fireworks display. This temporary safety zone is necessary to ensure 
the safety of vessels and spectators from hazards associated with 
fireworks displays. Persons and vessels are prohibited from entering 
into, transiting through, mooring, or anchoring within the temporary 
safety zone unless authorized by the COTP New York or the designated 
on-scene representative.

[[Page 37003]]


DATES: This rule is effective from 8:45 p.m. until 10:15 p.m. on June 
30, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-4075 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-4075 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, Coast Guard Sector 
New York Waterways Management Division; 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 the Coast Guard did not receive 
information regarding the dates and scope of the event in time to 
publish a NPRM followed by a final rule before the effective date.
    The Coast Guard was notified of this event on February 24, 2011. 
This event is a reoccurring marine event with a proposed permanent rule 
currently in a public comment period under docket number USCG-2010-1001 
titled, Special Local Regulations and Safety Zones; Recurring Events in 
Captain of the Port New York Zone.
    The sponsor was not aware of the requirements for submitting an 
application for a marine event 135 days in advance, resulting in a late 
notification to the Coast Guard. The sponsor is aware of this 
requirement for all future events. The sponsor is unable to reschedule 
this event due to other activities being held in conjunction with the 
fireworks display.
    Due to the dangers posed by the pyrotechnics used in this fireworks 
display, the safety zone is necessary to provide for the safety of 
event participants, spectator craft, and other vessels operating near 
the event area. For the safety concerns noted, it is in the public 
interest to have these regulations in effect during the event.
    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 must 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 would expose 
spectators, vessels, and other property to the hazards associated with 
pyrotechnics used in the fireworks display.

Basis and Purpose

    The legal basis for the temporary rule is 33 U.S.C. 1226, 1231, 46 
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 
116 Stat. 2064; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define safety 
zones.
    The Central Astoria Local Development Coalition has planned a 
fireworks event to celebrate Independence Day. The fireworks will 
commence at 9:15 p.m. on June 30, 2011 and will last approximately 25 
minutes. This event poses significant potential risk to participants, 
spectators and the maritime public because of hazardous conditions 
associated with a fireworks display. This temporary safety zone is 
necessary to ensure the safety of participants, spectators and vessels.

Discussion of Rule

    This rule establishes a temporary safety zone on a portion of the 
waters of the East River. The temporary safety zone will encompass all 
waters of the East River in the vicinity of Wards Island, Queens, NY, 
within a 150-yard radius of a shore location, approximate position 
40[deg]46'57.83'' N, 073[deg]55'28.58'' W (NAD 83) approximately 150 
yards south of Hells Gate Bridge.
    All persons and vessels shall comply with the instructions of the 
COTP New York or the designated on-scene representative. Entry into, 
transiting, or anchoring within the temporary safety zone is prohibited 
unless authorized by the COTP New York or the designated on-scene 
representative. The COTP New York or the designated representative may 
be reached on VFH Channel 16.

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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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.
    The Coast Guard's implementation of this temporary safety zone will 
be of short duration and designed to minimize the impact to vessel 
traffic on navigable waters. This safety zone will only be enforced for 
90 minutes. Furthermore, vessels may be authorized to transit the zone 
with permission of the COTP New York or the designated on-scene 
representative.

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 within the fireworks fall-out zone, a portion of the 
East River in the vicinity of Wards Island, Queens, NY. The fireworks 
will commence at 9:15 p.m. on June 30, 2011 and will last approximately 
25 minutes.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessel 
traffic can safely transit around the zone. Before the effective 
period, we will issue

[[Page 37004]]

maritime advisories widely available to users of the waterway. This 
rule will be in effect for only 90 minutes.

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 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 Upper New York Bay during the launching 
of fireworks.

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 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, 3306, 
3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0475 to read as follows:


Sec.  165.T01-0475  Safety Zone; Central Astoria Independence 
Celebration Fireworks Event, Wards Island, NY.

    (a) Regulated Area. The following area is a temporary safety zone: 
A 150 yard radius around position 40[deg]46'57.83'' N, 
073[deg]55'28.58'' W on the shore of Wards Island, Queens, NY.
    (b) Enforcement period. This section will be enforced from 8:45 
p.m. until 10:15 p.m. on June 30, 2011.
    (c) Regulations.
    (1) The general regulations contained in 33 CFR 165.23 apply.
    (2) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transit through, mooring or anchoring within 
this safety zone is prohibited unless authorized by the COTP New York 
or the designated on-

[[Page 37005]]

scene representative. ``Designated on-scene representative'' means any 
commissioned, warrant, and petty officer of the Coast Guard on board 
Coast Guard, Coast Guard Auxiliary, and local, state, and federal law 
enforcement vessels who have been authorized to act on behalf of the 
COTP New York.
    (3) Persons desiring to operate within the safety zone established 
in this section may contact the COTP New York at telephone number 718-
354-4398 or via on-scene patrol personnel on VHF channel 16 to seek 
permission to do so. If permission is granted, all persons and vessels 
must still comply with the instructions of the COTP New York or the 
designated on-scene representative.

    Dated: June 8, 2011.
L.L. Fagan,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2011-15788 Filed 6-23-11; 8:45 am]
BILLING CODE 9110-04-P