[Federal Register Volume 88, Number 65 (Wednesday, April 5, 2023)]
[Proposed Rules]
[Pages 20084-20086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07054]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0192]
RIN 1625-AA00


Safety Zone; Delaware Bay, Lower Township, NJ

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone for certain navigable waters of the Delaware Bay, in Lower 
Township, NJ. The safety zone is needed to protect personnel, vessels, 
and the marine environment from potential hazards created by a 
fireworks display. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
(COTP), Sector Delaware Bay. We invite your comments on this proposed 
rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 5, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0192 using the Federal Decision-Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Dylan Caikowski, Sector Delaware Bay, 
Waterways Management Division, U.S. Coast Guard; telephone (215) 271-
4814, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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

II. Background, Purpose, and Legal Basis

    On February 18, 2023, Lower Township, New Jersey notified the Coast 
Guard that it will be conducting a fireworks display from 9:30 to 9:50 
p.m. on July 3, 2023, or a rain date of July 5, 2023, to celebrate 
Independence Day. The fireworks are to be launched from a barge in the 
Delaware Bay approximately 350 yards west of North Cape May Beach, in 
Lower Township, NJ. Hazards from firework displays include accidental 
discharge of fireworks, dangerous projectiles, and falling hot embers 
or other debris. The COTP has determined that potential hazards 
associated with the fireworks to be used in this display would be a 
safety concern for anyone within a 300-yard radius of the barge.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within a 300-yard radius of the fireworks 
barge before, during, and after the scheduled event. The Coast Guard is 
proposing this rulemaking under authority in 46 U.S.C. 70034.

[[Page 20085]]

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone from 9:15 to 10 
p.m. on July 3, 2023, or a rain date of July 5, 2023. The safety zone 
would cover all navigable waters within 300 yards of a barge in the 
Delaware Bay located at approximate position latitude 38[deg]59'7.08'' 
N, longitude 074[deg]57'49.47'' W. The duration of the zone is intended 
to ensure the safety of vessels and these navigable waters before, 
during, and after the scheduled 9:30 to 9:50 p.m. fireworks display. No 
vessel or person would be permitted to enter the safety zone without 
obtaining permission from the COTP or a designated representative. The 
regulatory text we are proposing appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    This regulatory action determination is based on the following 
factors: (1) 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; (2) persons and vessels will still be able to 
enter, transit through, anchor in, or remain within the regulated area 
if authorized by the COTP Delaware Bay; and (3) 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.

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 
proposed rule would 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 proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.
    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 proposed rule. If the proposed 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. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because it would 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 proposed rule has implications for federalism or 
Indian tribes, please call or email 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 proposed rule would not 
result in such an expenditure, we do discuss the potential effects of 
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made 
a preliminary 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 proposed rule involves a safety 
zone lasting 45 minutes that would prohibit entry within 300 yards of a 
fireworks barge. 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. 1. A preliminary Record of 
Environmental Consideration supporting this determination is available 
in the docket. For instructions on locating the docket, see the 
ADDRESSES section of this preamble. We seek any comments or information 
that may lead to the discovery of a significant environmental impact 
from this proposed rule.

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

[[Page 20086]]

jeopardizing the safety or security of people, places, or vessels.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0192 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in the docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed rule. We may choose not to post 
off-topic, inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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 is 
proposing to amend 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T05-0192 to read as follows:


Sec.  165.T05-0192  Safety Zone; Delaware Bay, Lower Township, NJ.

    (a) Location. All navigable waters within 300 yards of a barge in 
the Delaware Bay located at approximate position latitude 
38[deg]59'7.08'' N, longitude 074[deg]57'49.47'' 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), Sector 
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) No vessel may take on bunkers or conduct lightering operations 
within the safety zone during its enforcement period.
    (4) 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 9:15 to 10 p.m. on July 3, 2023, or a rain date of July 
5, 2023.

    Dated: March 30, 2023.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port, Sector Delaware Bay.
[FR Doc. 2023-07054 Filed 4-4-23; 8:45 am]
BILLING CODE 9110-04-P