[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Rules and Regulations]
[Pages 54029-54032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21774]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0571]
RIN 1625-AA00


Safety Zone for Fireworks Display; Patapsco River, Inner Harbor, 
Baltimore, MD

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 Patapsco River.

[[Page 54030]]

This action is necessary to provide for the safety of life on these 
navigable waters of the Inner Harbor, Baltimore, MD, during a fireworks 
display on November 10, 2019, (with an alternate date of November 11, 
2019). This regulation prohibits persons and vessels from being in the 
safety zone unless authorized by the Captain of the Port Maryland-
National Capital Region or a designated representative.

DATES: This rule is effective from 11 p.m. on November 10, 2019, 
through 1 a.m. on November 12, 2019. This rule will be enforced from 11 
p.m. on November 10, 2019, through 1 a.m. on November 11, 2019, or, in 
the event of inclement weather on November 10th, from 11 p.m. on 
November 11, 2019, through 1 a.m. on November 12, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0571 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 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 Maryland-National Capital Region
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

    The Coast Guard was notified of two fireworks events on the 
navigable waters of the Inner Harbor, Baltimore, MD. Serpico 
Pyrotechnics, LLC of Toms River, NJ, notified the Coast Guard that it 
will be conducting a private fireworks display from 9:50 p.m. to 10 
p.m. on September 21, 2019, to commemorate a wedding. And, the 
Baltimore Office of Promotion and The Arts of Baltimore, MD, notified 
the Coast Guard that it will be conducting a fireworks display from 
11:30 p.m. to midnight on November 10, 2019, (rain date of November 11, 
2019) to end their ten-day Light and Literature Unite festival.
    In response, on July 15, 2019, the Coast Guard published a notice 
of proposed rulemaking (NPRM) titled ``Safety Zone for Fireworks 
Displays; Patapsco River, Inner Harbor, Baltimore, MD'' (84 FR 33713). 
There we stated why we issued the NPRM, and invited comments on our 
proposed regulatory action related to these fireworks displays. During 
the comment period that ended August 14, 2019, we received one comment. 
Additionally, after publication of the NPRM, the sponsor of the 
September 21st fireworks display notified the Coast Guard that they 
would not be conducting the event.

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 COTP has determined that 
potential hazards associated with the fireworks to be used in the 
display on November 10, 2019, will be a safety concern for anyone in 
the Inner Harbor near the five firework floating platforms. 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. It is 
important to note that the Coast Guard's authority is limited to 
assuring safety of navigation. Coast Guard does not have jurisdiction 
over the fireworks themselves and cannot enforce the overall activity, 
through land security, debris clean up etc. unless there is a clear 
link to safety of navigation.

IV. Discussion of Comments

    As noted above, we received one comment on our NPRM published July 
15, 2019. The commenter expressed support for the rule, but requested 
greater detail concerning eight issues.
    1. The type of security surrounding the Inner Harbor and the buffer 
zone on the ground and sea, as well as the number of roving patrols on 
both the land and sea.
    This rule applies the Coast Guard's authority to impose appropriate 
controls on waters under its jurisdiction where it is necessary to 
provide for the safety of life during a fireworks display. The type and 
scope of security provided for the fireworks display is the 
responsibility of the event sponsor.
    2. The scope of responsibility of the event sponsor, the Baltimore 
Office of Promotion and The Arts of Baltimore, MD.
    The Coast Guard does not provide approval for fireworks displays, 
however, it identifies the event sponsor as responsible for the overall 
safety of a fireworks display. This includes the protection of 
participants and spectators from the hazards of the event. National 
Fire Protection Association (NFPA) 1123, Code for Fireworks Display, 
contains the industry standards for outdoor aerial fireworks set by the 
NFPA. NFPA 1123 defines the sponsor as ``the organization (person, 
group, or government agency) that arranges with a duly authorized 
firework supplier for its services in presenting a fireworks display or 
in providing fireworks for use in a display.'' NFPA 1123 further states 
the sponsor for an outdoor fireworks display is responsible for 
obtaining a display permit from the Authority Having Jurisdiction (AHJ) 
prior to performing the fireworks display, if the operator or fireworks 
supplier does not. This approval includes providing, for review to the 
extent required by the AHJ, (i) verifiable proof of liability insurance 
of a type and amount deemed appropriate, (ii) a display site plan in 
the form of a diagram depicting the location of the display, (iii) 
written description of the event operating procedures, including 
emergency procedures, and (iv) provisions for both fire protection and 
crowd control, of the level required for the display.
    3. The policing up of the refuse by-product of fireworks and excess 
fallout on water surface, if any, or a contingency plan to minimize the 
fallout.
    The Coast Guard does not provide approval for fireworks displays, 
however, it identifies the event sponsor as responsible for the results 
of said displays. NFPA 1123 does not specifically address the 
collection of firework remnants after the display. It states that the 
firing crew shall conduct an inspection of the fallout area for the 
purpose of locating any unexploded aerial shells or live components 
following the fireworks display and before any public access to the 
site is allowed, and when fireworks are displayed at night, a search of 
the fallout area shall be made immediately after the display and at 
first light the following morning.
    4. Compensation aspects for security for participating law 
enforcement and Federal agencies to include special duty pay for off 
duty law enforcement personnel.
    The Coast Guard does not provide security for the fireworks, nor 
does it compensate those law enforcement agencies providing such 
service for the sponsor. The employment and compensation of law 
enforcement personnel providing security for the fireworks is the 
responsibility of the event sponsor.
    5. The possibility of intoxicated members of the public wandering 
into the safety zone.
    The Coast Guard understands that fireworks spectators, whether they 
are intoxicated or not, may approach the

[[Page 54031]]

safety zone. In addition to the constructive notice provided by 
publication of this rule in the Federal Register, to enforce the safety 
zone established by this rule, the COTP will provide on scene patrol 
resources.
    6. Posted signs of repercussions with proposed rule number to be 
used as a deterrent to trespassing personnel during proposed times.
    This regulation requires that the sponsor post on the port and 
starboard sides of the barge on-scene within the area of the safety 
zone, a ``FIREWORKS--DANGER--STAY AWAY'' sign during the period 
indicating this safety zone will be enforced. The COTP will notify the 
public that the safety zone in this rule will be enforced by all 
appropriate means to the affected segments of the public, including 
publication in the Federal Register, as practicable, in accordance with 
33 CFR 165.7(a). Such means of notification may also include, but are 
not limited to, Broadcast Notice to Mariners or Local Notice to 
Mariners. Vessels or persons violating this rule are subject to the 
penalties set forth in 46 U.S.C. 70036 (previously codified in 33 
U.S.C. 1232) and 46 U.S.C. 70052 (previously codified in 50 U.S.C. 
192).
    7. Proximity to and sufficient number of first responders (fire and 
rescue services) both on land and sea.
    The Coast Guard does not arrange for fire and rescue resources for 
the display. NFPA 1123 states the sponsor consults with the AHJ, the 
local responding fire department (if different from the AHJ) and the 
operator to determine the level of fire protection required, that fire 
protection and other emergency response personnel and their vehicles 
remain at or beyond the perimeter of the display site during the actual 
firing of the display, and that watercraft ready and capable of 
providing rapid emergency response be present during the display.
    8. Lighting for posted signs on land and road blocks or caution 
signs on surface streets surrounding the harbor for increased traffic 
warn drivers and pedestrians about the scheduled fireworks displays who 
may become distracted by the night sky being filled with bright lights 
and sounds.
    The Coast Guard's broad legal authority over navigation safety in 
the navigable waters of the United States does not extend landside to 
those areas described, which are subject to Federal, State, and local 
agencies.

V. Changes From the NPRM and Discussion of the Rule

    There is one change in the regulatory text of this rule from the 
proposed rule in the NPRM. As a result of the event sponsor's 
notification cancelling the fireworks display from a barge in the Inner 
Harbor, Baltimore, MD, on September 21, 2019, the Coast Guard has 
removed the enforcement period for this event proposed in the NPRM.
    This rule establishes a safety zone to be enforced from 11 p.m. on 
November 10, 2019, to 1 a.m. on November 11, 2019, (or alternatively, 
in case of rain, from 11 p.m. on November 11, 2019, to 1 a.m. on 
November 12, 2019). The safety zone will cover all navigable waters of 
the Patapsco River, Inner Harbor, from shoreline to shoreline, within 
an area bounded on the east by longitude 076[deg]36'12'' W, and bounded 
on the west by the Inner Harbor west bulkhead, located at Baltimore, 
MD. The duration of the zone is intended to ensure the safety of 
vessels and these navigable waters before, during, and after the 
scheduled 11:30 p.m. 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. 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 size, duration, 
time-of-day and time-of-year of the safety zone. Although this safety 
zone will restrict the entire width of the waterway, it will impact a 
small designated area of the Inner Harbor for a total of two hours 
during the evening when vessel traffic is normally low. 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 received no comments from the Small Business 
Administration on this 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.
    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 (Public Law 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

[[Page 54032]]

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 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 
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 to be enforced for 2 
hours that will prohibit entry within a small designated area of the 
Inner Harbor at Baltimore, MD. 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 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.T05-0571 to read as follows:


Sec.  165.T05-0571  Safety Zone for Fireworks Display; Patapsco River, 
Inner Harbor, Baltimore, MD.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Patapsco River, Inner Harbor, from shoreline to 
shoreline, within an area bounded on the east by longitude 
076[deg]36'12'' W, and bounded on the west by the Inner Harbor west 
bulkhead, located at Baltimore, MD. All coordinates refer to datum NAD 
1983.
    (b) Definitions. As used in this section:
    Captain of the Port (COTP) means the Commander, U.S. Coast Guard 
Sector Maryland-National Capital Region.
    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 during the 
period described in paragraph (f) of this section. A ``FIREWORKS--
DANGER--STAY AWAY'' sign will be posted on the port and starboard sides 
of the barge on-scene near the location described in paragraph (a) of 
this section.
    (f) Enforcement period. This section will be enforced from 11 p.m. 
on November 10, 2019, to 1 a.m. on November 11, 2019. If necessary due 
to inclement weather on November 10, 2019, this section will be 
enforced from 11 p.m. on November 11, 2019, to 1 a.m. on November 12, 
2019.

    Dated: October 2, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard Captain of the Port Maryland-National Capital 
Region.
[FR Doc. 2019-21774 Filed 10-8-19; 8:45 am]
BILLING CODE 9110-04-P