[Federal Register Volume 84, Number 177 (Thursday, September 12, 2019)]
[Rules and Regulations]
[Pages 48064-48066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19694]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0609]
RIN 1625-AA00


Safety Zone; Fireworks Display, Indian River Bay, DE

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the Indian River Bay near Long Neck, DE, on September 14, 
2019, with September 15, 2019 as an alternate date for inclement 
weather, to provide for safety of life during the Long Neck Style 
fireworks display. The safety zone is necessary to ensure the safety of 
participant vessels, spectators, and the boating public during the 
event. This regulation prohibits persons and non-participant vessels 
from entering, transiting through, anchoring in, or remaining within 
the safety zone unless authorized by the Captain of the Port (COTP) 
Delaware Bay or a designated representative.

DATES: This rule is effective from 8:00 p.m. to 10:30 p.m. on September 
14, 2019 (with September 15, 2019 as an alternate date for inclement 
weather).

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0609 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 on this rule, 
call or email Petty Officer Thomas Welker, U.S. Coast Guard Sector 
Delaware Bay, Waterways Management Division: Telephone (215) 271-4814, 
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

    This fireworks display safety zone is listed in the table to 33 CFR 
165.506, section (a), row (2), except that instead of taking place on 
Labor Day as published, it is being moved two weeks later. Due to this 
date change, the Coast Guard is issuing a new temporary rule instead of 
a notice of enforcement of the published rule. Additionally, the Coast 
Guard is reducing the size of the safety zone from a circle with a 700 
yard radius as published to a circle with a 150 yard radius around the 
launch site.
    The Coast Guard is issuing this temporary 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 it is impracticable and contrary to 
the public interest to do so. There is insufficient time to allow for a 
reasonable comment period prior to the date of the event. The rule must 
be in force by September 14, 2019. We are taking immediate action to 
ensure the safety of spectators and the general public from hazards 
associated with the fireworks display. Hazards include accidental 
discharge of fireworks, dangerous projectiles, and falling hot embers 
or other debris.
    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

[[Page 48065]]

with a fireworks displays in this location.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Delaware Bay 
(COTP) has determined that potential hazards associated with the 
fireworks to be used in this September 14, 2019 (with September 15, 
2019 as an alternate date for inclement weather), display will be a 
safety concern for anyone within a 150-yard radius of the launch site. 
The purpose of this rule is to ensure safety of vessels and the 
navigable waters in the safety zone before, during, and after the 
scheduled event.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone on the waters of the 
Indian River Bay near Long Neck, DE, during a fireworks display 
scheduled to take place between 8:00 p.m. and 10:30 p.m. on September 
14, 2019 (with September 15, 2019 as an alternate date for inclement 
weather). The fireworks will be set off from a pier over the bay at 
approximate position latitude 38[deg]36'42'' N, longitude 
075[deg]08'18'' W. The safety zone will extend 150 yards around the 
launch site. No person or vessel will be permitted to enter, transit 
through, anchor in, or remain within the safety zone without obtaining 
permission from the COTP Delaware Bay or a designated representative. 
If the COTP Delaware Bay or a designated representative grants 
authorization to enter, transit through, anchor in, or remain within 
the safety zone, all persons and vessels receiving such authorization 
must comply with the instructions of the COTP Delaware Bay or a 
designated representative. The Coast Guard will provide public notice 
of the safety zone by Local Notice to Mariners and Broadcast Notice to 
Mariners.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. 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, the 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.
    The impact of this rule is not significant for the following 
reasons: (1) The enforcement period will last one and a half hour when 
vessel traffic is usually low; (2) although persons and vessels may not 
enter, transit through, anchor in, or remain within the safety zone 
without authorization from the COTP Delaware Bay or a designated 
representative, they may operate in the surrounding area during the 
enforcement period; (3) persons and vessels will still be able to enter 
or transit through the regulated area if authorized by the COTP 
Delaware Bay; (4) the Coast Guard will provide advance notification of 
the safety zone to the local maritime community by Local Notice to 
Mariners and Broadcast Notice to Mariners; and (5) as noted in Section 
II above the Coast Guard is reducing the radius of the zone from 700 
(as published in the table to 33 CFR 165.501, section (a), row (2)) to 
150 yards.

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 
IV.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.

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

[[Page 48066]]

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 Environmental Planning COMDTINST 5090.1 (series), 
which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made 
a determination 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 temporary safety zone that 
prohibits persons and vessels from entering, transiting through, 
anchoring in, or remaining within a limited area on the navigable water 
in the Delaware River, during a fireworks display lasting approximately 
one and a half hours. It is categorically excluded from further review 
under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental 
Planning Implementing Procedures 5090.1. A Record of Environmental 
Consideration (REC) 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: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

0
2. Add Sec.  165.T05-0609 to read as follows:


Sec.  165.T05-0609  Safety Zone; Fireworks Display, Indian River Bay, 
DE.

    (a) Location. The following area is a safety zone: All waters of 
Indian River Bay off Long Neck, DE within 150 yards of the launch site 
at approximate position latitude 38[deg]36'42'' N, longitude 
075[deg]08'18'' W.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard petty 
officer, warrant or commissioned officer on board a Coast Guard vessel 
or on board a federal, state, or local law enforcement vessel assisting 
the Captain of the Port (COTP), Delaware Bay in the enforcement of the 
safety zone.
    (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.
    (2) To seek permission to enter or remain in the zone, contact the 
COTP or the COTP's representative via VHF-FM channel 16 or 215-271-
4807. 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.
    (3) This section applies to all vessels except those engaged in law 
enforcement, aids to navigation servicing, and emergency response 
operations.
    (d) Enforcement. 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 period. This zone will be enforced from 
approximately 8:00 p.m. through 10:30 p.m. on September 14, 2019 (with 
September 15, 2019 as an alternate date for inclement weather).

    Dated: September 6, 2019.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Acting Captain of the Port Delaware Bay.
[FR Doc. 2019-19694 Filed 9-11-19; 8:45 am]
 BILLING CODE 9110-04-P