[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Proposed Rules]
[Pages 30268-30272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10070]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2023-0158]
RIN 1625-AA08


Special Local Regulation; Lower East River & New York Harbor 4th 
of July Fireworks, Manhattan, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposes establishing a special local 
regulation on the navigable waters of the lower East

[[Page 30269]]

River and New York Harbor, NY, for vessel management for the annual 4th 
of July fireworks display. This special local regulation allows the 
Coast Guard to control vessel movement and prohibit all vessel traffic 
from entering the fireworks barge buffer zone, and establish four 
separate viewing areas. This rule is necessary to provide for the 
safety of life on the navigable waters immediately before, during, and 
after a fireworks display that involves multiple barge launch sites on 
a highly congested waterway. We invite your comments on this proposed 
rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 12, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0158 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 about this 
proposed rulemaking, call or email Marine Science Technician First 
Class Ian Rose, Waterways Management Division, U.S. Coast Guard; 
telephone 718-354-2250, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port New York
DHS Department of Homeland Security
FR Federal Register
LLNR Light List Number
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec.  Section
SLR Special Local Regulation
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On February 9, 2023, the Coast Guard received a request for the 
annual 4th of July fireworks display to be held on the Lower East River 
and in the New York Harbor. The Captain of the Port New York (COTP) has 
determined that this event in close proximity to marine traffic poses a 
significant risk to public safety and property. The proposed special 
local regulation mimics those limited access areas established for 4th 
of July in previous years. As in years prior, a buffer zone will be set 
around the barges and four viewing areas that will separate vessels 
based on length. Multiple firework displays will commence 
simultaneously, producing a relatively large fallout zone over the East 
River when the East River and New York Harbor experiences heavy vessel 
congestion necessitating the need to control of vessel movement 
immediately before, during, and after this display.
    The combination of multiple simultaneous fireworks displays on the 
East River, where a significant increase of recreational vessel traffic 
is anticipated, has the potential to result in serious injuries or 
fatalities. This proposed rule would establish a buffer zone around the 
barges in show position and four separate viewing areas separating 
vessels by size to protect the safety of all waterway users, including 
event participants and spectators. The proposed rulemaking aims to 
ensure the safety of participants, non-participants, and transiting 
vessels on the navigable waters near the fireworks display and the 
spectator zone before, during, and after the scheduled event. The Coast 
Guard proposes this rulemaking under the authority of 46 U.S.C. 70041.

III. Discussion of Proposed Rule

    The Coast Guard proposes establishing a special local regulation 
subject to enforcement annually from 5:30 through 11:30 p.m. on July 4 
or July 5. This special local regulation creates five regulated areas: 
a buffer zone around each firework display barge and four viewing 
areas. As shown in the illustration below, the buffer zone, area ``C'', 
will exclude all nonparticipating vessels from the area surrounding the 
barges immediately before, during, and after the display. The four 
separate viewing areas, areas ``A'', ``B'', ``D'', and ``E'', will 
separate vessels based on the vessel's length.
[GRAPHIC] [TIFF OMITTED] TP11MY23.012


[[Page 30270]]


    The duration of the enforcement times is intended to ensure the 
safety of vessels, participants, spectators, and those transiting the 
area during the fireworks display. Navigation rules, 33 CFR part 83, 
will apply at all times within the areas. The Coast Guard will provide 
notice of the special local regulation by Local Notice to Mariners, 
Broadcast Notice to Mariners, and on-scene designated representatives.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and Executive orders related to rulemaking. A summary of our analysis 
based on these statutes and Executive Orders follows.

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, this 
proposed rule has not been reviewed by the Office of Management and 
Budget (OMB).
    This regulatory action determination is based on the special local 
regulation's size, location, and duration. In addition, although this 
rule restricts access to the waters encompassed by the special local 
regulation, the effect of this rule will not be significant because the 
local waterway users will be notified in advance via a public Broadcast 
Notice to Mariners and Local Notice to Mariners. The entities most 
likely affected are commercial vessels and pleasure crafts engaged in 
recreational activities.

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 
regulated area 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. The maritime public will be 
advised in advance of this special local regulation via Broadcast 
Notice to Mariners and Local Notice to Mariners.
    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 call for no 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 
regulated area lasting six hours or less that would limit persons or 
vessels from transiting a portion of the lower East River and New York 
Harbor during the scheduled event. Normally such actions are 
categorically excluded from further review under paragraph L61 of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. 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 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

[[Page 30271]]

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-2023-0158. 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 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. 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 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  46 U.S.C. 70041; 33 CFR 1.05-1.

0
2. Add Sec.  100.111 to read as follows:


Sec.  100.111  Lower East River and New York Harbor 4th of July 
Fireworks, Manhattan, NY.

    (a) Regulated areas. The regulations in this section apply to the 
following areas:
    (1) Area ALPHA: All navigable waters of the East River bound by a 
line connecting the following coordinates: from 40[deg]42'46'' N 
73[deg]58'34'' W (near Grand St. Manhattan), to 40[deg]42'38'' N 
73[deg]58'12'' W, along the shore to 40[deg]42'22'' N, 073[deg]58'45'' 
W (near Little Street, Brooklyn, NY), to 40[deg]42'37'' N, 
073[deg]58'50'' W (the corner of Pier 42, Manhattan, NY), then along 
the shoreline back to the point of origin.
    (2) Area BRAVO: All navigable waters of the East River bound by a 
line connecting the following points: from 40[deg]42'37'' N, 
073[deg]58'50'' W (near Pier 42, Manhattan, NY), to 40[deg]42'22'' N, 
073[deg]58'45'' W (near Little Street, Brooklyn, NY), along the shore 
to 40[deg]42'19'' N 73[deg]59'15'' W (near Pearl Street, Brooklyn, NY), 
to 40[deg]42'33'' N 73[deg]59'18'' W (near Jefferson Street, Manhattan, 
NY) then along the shoreline to the point of origin.
    (3) Area CHARLIE: All navigable waters of the East River bound by a 
line connecting the following points: beginning at 40[deg]42'33'' N 
73[deg]59'18'' W (near Jefferson Street, Manhattan, NY), to 
40[deg]42'19'' N 73[deg]59'15'' W (near Pearl Street, Brooklyn, NY), 
along the shore to 40[deg]41'28'' N 74[deg]00'19'' W (Pier 8, Brooklyn, 
NY), to 40[deg]41'34.728'' N 74[deg]00'54'' W (near Governors Island 
Ferry Slip), to 40[deg]42'03'' N 74[deg]00'55'' W (near Battery Park, 
Manhattan, NY), then along the shoreline back to the point of origin.
    (4) Area DELTA: All navigable waters of the East River bound by a 
line connecting the following points from 40[deg]42'03'' N 
74[deg]00'55'' W (near Battery Park, Manhattan, NY), to 40[deg]41'35'' 
N 74[deg]00'54'' W (near the Governors Island Ferry Slip), along the 
shoreline of Governors Island to 40[deg]41'09'' N 74[deg]01'36'' W, 
then north to 40[deg]42'03'' N, 074[deg]01'40'' W, then back to the 
point of origin.
    (5) Area ECHO: All navigable waters of the East River bound by a 
line connecting the following points beginning at 40[deg]41'34'' N, 
74[deg]0'51'' W (near Governors Island) to 40[deg]41'28'' N 
74[deg]00'19'' W (Pier 8, Brooklyn, NY), to 40[deg]40'44'' N 
74[deg]01'10'' W (Red Hook), to 40[deg]41'03'' N 74[deg]01'32'' W, then 
along the shore back to the point of origin.
    (b) Definitions. As used in this section:
    Designated Representative is any Coast Guard Patrol Commander, 
including a Coast Guard coxswain, petty officer or other officer 
operating a Coast Guard vessel and a Federal, State and local officer 
designated by or assisting the Captain of the Port (COTP) New York in 
the enforcement of this section.
    Official Patrol Vessel means any Coast Guard, Coast Guard 
Auxiliary, Federal, State or local law enforcement vessel assigned or 
approved by the COTP New York to assist in the enforcement of this 
section.
    Spectator means a person or vessel not registered with the event 
sponsor as participants or official patrol vessels.
    (c) Regulations. (1) In accordance with the special local 
regulations in Sec.  100.35, entry into, transiting, or anchoring 
within the regulated areas described in paragraph (a) of this section 
is prohibited, unless authorized by the COTP or a designated 
representative.
    (2) All vessels that are authorized by the COTP or a designated 
representative to enter the regulated areas established by this section 
must adhere to the following restrictions:
    (i) Area ALPHA access is limited to vessels less-than or equal to 
20 meters (65.6 ft) in length.
    (ii) Area BRAVO access is limited to vessels over 20 meters (65.6 
ft) in length.
    (iii) All vessels are prohibited from entering area CHARLIE without 
permission from the COTP or a designated representative after 6 p.m. 
Commercial passenger vessels that need to transit through the Charlie 
Section enroute to their designated viewing areas must receive 
authorization from the Coast Guard Patrol Commander. Commercial 
passenger vessels must pass as close to the pierhead as possible and 
must transit through the zone no later than 7:30 p.m. Vessels must 
operate at the minimum speed necessary to maintain safe course while 
crossing through the Charlie Section and take all direction that may be 
provided by the Coast Guard.
    (iv) Area DELTA access is limited to vessels over 20 meters (65.6 
ft) in length.
    (v) Area ECHO access is limited to vessels less-than or equal to 20 
meters (65.6 ft) in length.
    (vi) Vessels desiring to utilize any of these limited access areas 
must enter the area by 7:30 p.m.
    (3) During periods of enforcement all persons and vessels in the 
limited access areas must comply with all lawful orders and directions 
from the COTP New York or the COTP New York's designated 
representative.
    (4) Vessel operators desiring to enter or operate within a limited 
access area should contact the COTP New York at 718-354-4088 or on VHF 
16 to obtain permission.
    (5) Spectators or other vessels must not anchor, block, loiter or 
impede the transit of event participants or official patrol vessels in 
the limited access area during the effective dates and times unless 
authorized by COTP New York or designated representative.

[[Page 30272]]

    (6) The COTP or a representative will inform the public through 
local notice to mariners. Broadcast Notices to Mariners, or both, of 
the enforcement period for the regulated area as well as any changes of 
the enforcement times.
    (d) Enforcement periods. This section will be subject to 
enforcement annually from 5:30 through 11:30 p.m. on July 4. In the 
event the fireworks display is postponed due to inclement weather or 
other causes, this section will be enforced annually from 5:30 to 11:30 
p.m. on July 5.

    Dated: May 4, 2023.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2023-10070 Filed 5-10-23; 8:45 am]
BILLING CODE 9110-04-P