[Federal Register Volume 87, Number 93 (Friday, May 13, 2022)]
[Rules and Regulations]
[Pages 29226-29228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10345]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2022-0131]
RIN 1625-AA00
Safety Zones; Recurring Marine Events and Fireworks Displays
Within the Fifth Coast Guard District
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is amending its safety zones established for
recurring marine events and fireworks displays that take place within
the Fifth Coast Guard District area of responsibility. This action is
necessary to address minor revisions to the listing of events that
informs the public of regularly scheduled fireworks displays that
require additional safety measures provided by regulations. Through
this final rule, the current list of recurring marine events requiring
safety zones will be updated with two additional events that take place
in the Sector Virginia area of responsibility. This regulation
prohibits persons and vessels from being in the safety zones unless
authorized by the Captain of the Port Virginia or a designated
representative.
DATES: This rule is effective June 13, 2022.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type Docket
Number USCG-2022-0131 in the search box and click ``Search.'' Next, in
the Document Type column, select ``Supporting & Related Material.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LCDR Ashley Holm, Chief, Waterways Management Division,
Sector Virginia, U.S. Coast Guard; telephone 757-668-5580 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
PATCOM Patrol Commander
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
The Coast Guard regularly updates the regulations for recurring
safety zones within the Fifth Coast Guard District at 33 CFR 165.506,
and its respective tables. These recurring safety zones are for
fireworks displays that take place either on or over the navigable
waters of the Fifth Coast Guard District as defined at 33 CFR 3.25.
These regulations were last amended October 15, 2021 (86 FR 57358).
Since then, two recurring marine events within the Fifth Coast Guard
District have changed in a way that require establishment of a safety
zone for protection of life, property and the environment. Hazards
associated with these events include potential falling debris and
possible fire, explosion, projectile, and burn hazards. The purpose of
this rule is to ensure the safety of persons, vessels, and the
navigable waters within close proximity to fireworks displays before,
during, and after the scheduled events. In response, on March 20, 2022,
the Coast Guard published a notice of proposed rulemaking (NPRM) titled
Safety Zones; Recurring Marine Events and Fireworks Displays Within the
Fifth Coast Guard District (87 FR 15347). 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 April 19, 2022, we received one comment.
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 Virginia
(COTP) has determined that potential hazards associated with the
fireworks events present a safety concern for anyone within the safety
zones. 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 Comments, Changes, and the Rule
As noted above, we received one comment on our NPRM published on
March 20, 2022. The commenter was interested in understanding more
about how these safety zones were developed, particularly how the Coast
Guard determined how big each zone needs to be, where they are located,
whether the Coast Guard regulates the types of fireworks used in the
event, and environmental analysis. The Coast Guard creates safety zones
under the authority in 46 U.S.C. 70034. The Coast Guard carefully
determines the appropriate size of the safety zone using the shell
diameter as a referential factor and uses the National Vessel
Inspection Circular (NVIC) No. 7-02, Marine Safety at Fireworks
Displays, and the National Fire Protection Agency (NFPA) 1123, Code for
Fireworks Display, to determine applicable size of the awarded safety
zone using the established criteria. In general, fireworks shows are
common occurences both on land and on the waterway. The Coast Guard
reviews each individual proposed waterborne event on a case-by-case
basis. Marine event permit applications are submitted to the Coast
Guard by sponsors of proposed marine events. They include a good faith
estimate of spectator craft that are expected to be drawn to the event
based on the ``triggering event'' itself. In each of the two safety
zones proposed, the fireworks shows or ``triggering events'' are
expected to draw a significant number of spectator craft based on
historical precedent, general public interest and the best projections
for attendance communicated to the Coast Guard via the marine event
application process. Part of the marine event application process is
the National Environmental Protection Act (NEPA) consideration the
Coast Guard completes for all federal actions taken. The issuance of a
marine event permit constitutes a ``federal action'', thus requiring
the NEPA review to be completed. The NEPA review considers the proposed
event location and evaluates the potential impact to environmentally
sensitive areas that may need to be addressed and mitigated. The
issuance of a rule creating the safety zone is a seperate federal
action. The fireworks events in this regulation are legacy events that
were inadvertently removed due to administrative error when the Coast
Guard revised 33 CFR 165.506, and its respective tables, in 2021. This
regulatory action was taken to re-establish the two safety zones rather
than establish them as new occurences.
There are no changes in the regulatory text of this rule from the
proposed rule in the NPRM.
The first safety zone would be enforced on the third or fourth
Saturday in July of each year, beginning in July 2022, between 9:30
p.m. and 10 p.m. and cover all waters of John H. Kerr Reservoir within
a 400 yard radius of approximate position latitude 36[deg]37'51''
[[Page 29227]]
N, longitude 078[deg]32'50'' W, located near the center span of the
State Route 15 Highway Bridge.
The second safety zone would be enforced on the evening of the
first or second Saturday or Sunday in June of each year, beginning in
June 2022, between 9:30 p.m. and 10 p.m. and cover all waters of the
Elizabeth River within a 500-yard radius of approximate position of the
fireworks barge at latitude 36[deg]50'41'' N, longitude 076[deg]17'47''
W, located near Town Point Park in Norfolk, VA.
Dates and times are subject to change in accordance with existing
regulatory text found in 33 CFR 165.506(c).
The duration of the zones are intended to ensure the safety of
vessels and these navigable waters before, during, and after each
scheduled fireworks display. No vessel or person would be permitted to
enter the safety zones without obtaining permission from the COTP or a
designated representative. The regulatory text we are proposing appears
at the end of this document.
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. 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).
This regulatory action determination is based on the short amount
of time that vessels will be restricted from certain parts of the
waterway and the small size of these areas that are usually positioned
away from high vessel traffic zones. Generally vessels would not be
precluded from getting underway, or mooring at any piers or marinas
currently located in the vicinity of the regulated areas. Advance
notifications will also be made to the local maritime community by
issuance of Local Notice to Mariners, Broadcast Notice to Mariners via
VHF-FM marine channel 16, and Marine Safety Information or Security
Bulletins so mariners can adjust their plans accordingly. Notifications
to the public for most events will typically be made by local
newspapers, radio and TV stations. The Coast Guard anticipates that
these safety zones will only be enforced for limited durations, less
than 24 hours, occurring on specific dates throughout the year.
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 (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
call or email 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.
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, Rev. 1, associated implementing instructions, 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 2
recurring safety zones lasting less than 1 hour each that will prohibit
entry within. It is categorically excluded from further review under
paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 1. A Record of Environmental Consideration supporting
this determination is available in the docket.
[[Page 29228]]
For instructions on locating the docket, see the ADDRESSES section of
this preamble.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email 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.
00170.1, Revision No. 1.2.
0
2. In Sec. 165.506, amend table 3 to paragraph (h)(3) by adding
entries 12 and 13 to read as follows:
Sec. 165.506 Safety Zones; Fireworks Displays in the Fifth Coast
Guard District.
* * * * *
(h) * * *
(3) * * *
Table 3 to Paragraph (h)(3)
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
12........ July--3rd or 4th John H. Kerr All waters of John H.
Saturday. Reservoir, Kerr Reservoir within
Clarksville, VA; a 400-yard radius of
Safety Zone. approximate position
latitude
36[deg]37'51'' N,
longitude
078[deg]32'50'' W,
located near the
center span of the
State Route 15
Highway Bridge.
13........ June--first or Elizabeth River, All waters of the
second Saturday Town Point Elizabeth River, Town
or Sunday. Reach, Norfolk, Point Reach within a
VA; Safety Zone. 500-yard radius of
approximate position
of the fireworks
barge latitude
36[deg]50'41'' N,
longitude
076[deg]17'47'' W, in
vicinity of Town
Point Park in
Norfolk, VA.
------------------------------------------------------------------------
* * * * *
Dated: May 9, 2022.
L.M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-10345 Filed 5-12-22; 8:45 am]
BILLING CODE 9110-04-P