[Federal Register Volume 78, Number 81 (Friday, April 26, 2013)]
[Rules and Regulations]
[Pages 24677-24679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09855]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0208]
RIN 1625-AA00


Safety Zone; XA The Experimental Agency Fireworks, Pier 34, East 
River, 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 East River in the vicinity of Pier 34, 
Manhattan, NY. This temporary safety zone is necessary to protect 
spectators and vessels from the hazards associated with fireworks 
displays. This rule is intended to restrict all vessels from a portion 
of East River before, during, and immediately after the fireworks 
event.

DATES: This rule is effective on May 16, 2013 from 8:00 p.m. until 9:15 
p.m.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2013-0208]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 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 rule, 
call or email Ensign Kimberly Beisner, Sector New York, Waterways 
Management, U.S. Coast Guard; Telephone (718) 354-4163, Email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and 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 about 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 received the information about the event 
on February 20, 2013. The event sponsor was unwilling to delay the 
event since the event is being held in correlation with a film premiere 
event. Any delay encountered in this regulation's effective date by 
publishing a NPRM would be contrary to public interest, since immediate 
action is needed to provide for the safety of life and property on 
navigable waters from the hazards associated with fireworks including 
unexpected detonation and burning debris.

[[Page 24678]]

    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 for the same reasons specified 
above.

B. Basis and Purpose

    The legal basis for this rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 
701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 
160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.
    This temporary safety zone is necessary to ensure the safety of 
spectators and vessels from hazards associated with the fireworks 
display.

C. Discussion of the Final Rule

    This rule establishes a temporary safety zone on the navigable 
waters of the East River, in the vicinity of Pier 34, Manhattan, NY. 
All persons and vessels shall comply with the instructions of the 
Captain of the Port (COTP) New York or the designated representative 
during the enforcement of the temporary safety zone. Entering into, 
transiting through, or anchoring within the temporary safety zone is 
prohibited unless authorized by the COTP, or the designated 
representative.
    Based on the inherent hazards associated with fireworks, the COTP 
New York has determined that fireworks launches in close proximity to 
water crafts pose a significant risk to public safety and property. The 
combination of increased number of recreational vessels, congested 
waterways, darkness punctuated by bright flashes of light, and debris 
especially burning debris falling on passing or spectator vessels has 
the potential to result in serious injuries or fatalities. This 
temporary safety zone will restrict vessels from a portion of the East 
River around the location of the fireworks launch platform before, 
during, and immediately after the fireworks display.
    The Coast Guard has determined that this regulated area will not 
have a significant impact on vessel traffic due to its temporary nature 
and limited size and the fact that vessels are allowed to transit the 
navigable waters outside of the regulated area.
    Advanced public notifications may also be made to the local 
mariners through appropriate means, which may include, but are not 
limited to, the Local Notice to Mariners as well as Broadcast Notice to 
Mariners.

D. 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.

1. Regulatory Planning and Review

    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, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The Coast Guard's implementation of this temporary safety zone will 
be of short duration and is designed to minimize the impact to vessel 
traffic on the navigable waters. This temporary safety zone will only 
be enforced for a short period, in the late evening. Due to the 
location, vessels will be able to transit around the zone in a safe 
manner.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    (1) 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 navigable waters in the vicinity 
of the marine event during the effective period.
    (2) This safety zone would not have a significant economic impact 
on a substantial number of small entities for the following reasons: 
This rule will be in effect a short period; late at night when vessel 
traffic is low, vessel traffic could pass safely around the safety 
zone, and the Coast Guard will notify mariners before activating the 
zone by appropriate means which may include but are not limited to 
Local Notice to Mariners and Broadcast Notice to Mariners.

3. 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 rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 24679]]

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
that 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 involves the establishment of a temporary safety 
zone. This rule is categorically excluded from further review under 
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An 
environmental analysis checklist supporting this determination and a 
Categorical Exclusion Determination are available in the docket where 
indicated under ADDRESSES. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
rule.

List of Subjects in 33 CFR Part 165

    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 AREA

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T01-0208 to read as follows:


Sec.  165.T01-0208  Safety Zone; XA The Experimental Agency Fireworks, 
Pier 34, East River, NY.

    (a) Regulated Area. The following area is a temporary safety zone: 
all navigable waters of East River within a 180-yard radius of the 
fireworks barge located in approximate position 40[deg]42'28.5'' N, 
073[deg]59'9.9'' W, approximately 182 yards south east of Pier 34, 
Manhattan, NY.
    (b) Effective Dates and Enforcement Periods. This rule is effective 
and will be enforced on May 16, 2013 from 8:00 p.m. until 9:15 p.m.
    (c) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the Captain of the Port Sector 
New York (COTP), to act on his or her behalf. The designated 
representative may be on an official patrol vessel or may be on shore 
and will communicate with vessels via VHF-FM radio or loudhailer. In 
addition, members of the Coast Guard Auxiliary may be present to inform 
vessel operators of this regulation.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (d) Regulations.
    (1) The general regulations contained in 33 CFR 165.23, as well as 
the following regulations, apply.
    (2) No spectators, except for fireworks barge and accompanying 
vessels, will be allowed to enter into, transit through, or anchor in 
the safety zone without the permission of the COTP or the designated 
representative.
    (3) All spectators given permission to enter or operate in the 
regulated area shall comply with the instructions of the COTP or the 
designated representative. Upon being hailed by a U.S. Coast Guard 
vessel by siren, radio, flashing light, or other means, vessel 
spectator shall proceed as directed.
    (4) Spectators desiring to enter or operate within the regulated 
area shall contact the COTP or the designated representative via VHF 
channel 16 or 718-354-4353 (Sector New York command center) to obtain 
permission to do so.

    Dated: April 10, 2013.
G. Loebl,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2013-09855 Filed 4-25-13; 8:45 am]
BILLING CODE 9110-04-P