[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Rules and Regulations]
[Pages 4333-4336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02465]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-1011]
RIN 1625-AA00


Safety Zone for Fireworks Displays; Upper Potomac River, 
Washington Channel, DC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain waters of the Upper Potomac River. This action is necessary to 
provide for the safety of life on these navigable waters of the 
Washington Channel adjacent to The Wharf DC, Washington, DC, for 
recurring fireworks displays from January 12, 2019, through December 
31, 2019. This regulation prohibits persons and vessels from entering 
the safety zone unless authorized by the Captain of the Port

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Maryland-National Capital Region or a designated representative.

DATES: This deviation is effective without actual notice from February 
15, 2019 through December 31, 2019. For the purposes of enforcement, 
actual notice will be used from January 12, 2019, until February 15, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-1011 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
call or email Mr. Ron Houck, Sector Maryland-National Capital Region 
Waterways Management Division, U.S. Coast Guard; telephone 410-576-
2674, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On October 30, 2018, Pyrotecnico, Inc., of New Castle, PA, notified 
the Coast Guard that it will be conducting fireworks displays, 
sponsored by The Wharf DC, from 7 p.m. to 11:59 p.m. for various events 
from January 12, 2019, through December 31, 2019. The fireworks are to 
be launched from a barge in the Washington Channel, adjacent to The 
Wharf DC in Washington, DC. In response, on November 14, 2018, the 
Coast Guard published a notice of proposed rulemaking (NPRM) titled 
``Safety Zone for Fireworks Displays; Upper Potomac River, Washington 
Channel, DC'' (83 FR 56768). There we stated why we issued the NPRM, 
and invited comments on our proposed regulatory action related to this 
fireworks display. During the comment period that ended December 14, 
2018, we received 29 comments.
    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. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest 
because immediate action is needed to mitigate the potential safety 
hazards associated with a fireworks display in this location.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port (COTP) Maryland-NCR has determined that 
potential hazards associated with the fireworks to be used in these 
displays will be a safety concern for anyone within a 200-foot radius 
of the fireworks barge. This rule is needed to ensure safety of vessels 
on the navigable waters within 200 feet of the fireworks barge on the 
Washington Channel before, during, and after the scheduled events.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 29 public submissions to the docket 
responding to our NPRM published November 14, 2018. We thank all of the 
commenters for taking time to review the NPRM and submit comments 
regarding this action.
    The majority of commenters expressed support for the rule but there 
were four issues presented.
    The size of the safety zone is not effective and should be 
increased for public safety purposes.
    The minimum safe distance from the fireworks barge used by the 
Coast Guard to determine the size of the safety zone is based on 
industry standards for outdoor aerial fireworks set by the National 
Fire Protection Association (NFPA). The NFPA standard for this 
fireworks display is 140 feet from the discharge site. At the request 
of the contracted fireworks company, Pyrotecnico, the Coast Guard is 
using 200 feet for the size of its safety zone, which is an increase of 
approximately 40 percent above the safe distance set by the NFPA.
    The duration of the enforcement of the zone, from 7 p.m. until 
11:59 p.m., is excessive and doesn't agree with the duration of a 
typical fireworks show.
    Although these fireworks shows are typically of short duration, not 
all of these fireworks displays will be scheduled to occur at the same 
time of the evening throughout the year. The actual enforcement period 
used for each of these fireworks events is expected to be two hours. In 
developing the length of the safety zone enforcement period of five 
hours, the Coast Guard has taken care to avoid imposing restrictions on 
waterway usage longer than what is justified to ensure the safety of 
the public.
    A barrier or sign, and other methods of notice, should be used to 
separate the zone from the rest of the waterway and its users.
    The following forms of notice will be provided for each fireworks 
display. The fireworks barge that operates within the safety zone will 
have a sign affixed to the port and starboard side of the barge labeled 
``FIREWORKS--DANGER--STAY AWAY'' to provide on-scene notice that the 
safety zone will be enforced on that day. Patrol vessels assigned by 
the COTP Maryland-National Capital Region will be present to monitor 
the fireworks display and enforce the safety zone. In addition, the 
COTP Maryland-National Capital Region will notify the public of the 
specific enforcement times of the safety zone by all appropriate means 
to affect the widest publicity among the affected segments of the 
public, including publishing a Notice of Enforcement in the Federal 
Register and an article in the Local Notice to Mariners. Broadcast 
Notice to Mariners will also be made for each of these events, to begin 
prior to that start of the scheduled event, and to continue to notify 
the public, until immediately after its completion.
    Waterway users must be notified with ample time so that they have 
the ability to obtain the authorization required to transit the area of 
the safety zone.
    Since the forms of notice stated previously will be provided in 
advance of each fireworks display, waterway users will have the time 
needed to request authorization to transit the area of the safety zone 
and make appropriate voyage plans.
    There are no changes in the regulatory text of this rule from the 
proposed rule in the NPRM.
    This rule establishes a temporary safety zone in the Washington 
Channel from January 12, 2019, through December 31, 2019. The safety 
zone will cover all navigable waters of the Washington Channel within 
200 feet of the fireworks barge. For each event, the barge will be 
located within an area bounded on the south by latitude 38[deg]52'30'' 
W, and bounded on the north by the southern extent of the Francis Case 
(I-395) Memorial Bridge, located at Washington, DC. The safety zone 
will be enforced from 7 p.m. until 11:59 p.m. for each fireworks 
display scheduled from January 12, 2019, through December 31, 2019. The 
duration of the safety zone is intended to ensure the safety of vessels 
and these navigable waters before, during, and after the scheduled 
fireworks display. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP or a designated 
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking.

[[Page 4335]]

Below we summarize our analyses based on a number of these statutes and 
Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
duration, and time-of-day of the safety zone. Although vessel traffic 
will not be able to safely transit around this safety zone when being 
enforced, the impact would be for less than 5 hours during the evening 
when vessel traffic in Washington Channel is normally low. Moreover, 
the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM 
marine channel 16 about the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (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 
a safety zone that will be in effect for the entire year, however, when 
activated, lasting less than 5 hours that prohibits entry within a 
portion of the Washington Channel. Normally such actions are 
categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

G. 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.

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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; and; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T05-1011 to read as follows:


Sec.  165.T05-1011  Safety Zone for Fireworks Displays; Upper Potomac 
River, Washington Channel, Washington, DC.

    (a) Location. The following area is a safety zone: All navigable 
waters of the

[[Page 4336]]

Washington Channel within 200 feet of the fireworks barge located 
within an area bounded on the south by latitude 38[deg]52'30'' W, and 
bounded on the north by the southern extent of the Francis Case (I-395) 
Memorial Bridge, located at Washington, DC. All coordinates refer to 
datum NAD 1983.
    (b) Definitions. As used in this section:
    (1) Captain of the Port (COTP) means the Commander, U.S. Coast 
Guard Sector Maryland-National Capital Region.
    (2) Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port Maryland-National Capital Region to assist in enforcing the safety 
zone described in paragraph (a) of this section.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative. All vessels underway within this 
safety zone at the time it is activated are to depart the zone.
    (2) To seek permission to enter, contact the COTP or the COTP's 
designated representative by telephone at 410-576-2693 or on Marine 
Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels 
enforcing this section can be contacted on Marine Band Radio VHF-FM 
channel 16 (156.8 MHz).
    (3) Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted in 
the patrol and enforcement of the safety zone by Federal, State, and 
local agencies.
    (e) Enforcement. This safety zone will be enforced January 12, 
2019, through December 31, 2019, from 7 p.m. to 11:59 p.m. each day 
that a barge with a ``FIREWORKS--DANGER--STAY AWAY'' sign on the port 
and starboard sides is on-scene or a ``FIREWORKS--DANGER--STAY AWAY'' 
sign is posted on land adjacent to the shoreline, near the location 
described in paragraph (a) of this section. The enforcement times of 
this section are subject to change, but the duration of each 
enforcement of the zone is expected to be 5 hours or less. Prior to 
enforcement, the COTP will provide notice by publishing a Notice of 
Enforcement in the Federal Register, as well as issuing a Broadcast 
Notice to Mariners.

    Dated: February 11, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the Port Maryland-National 
Capital Region.
[FR Doc. 2019-02465 Filed 2-14-19; 8:45 am]
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