[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Rules and Regulations]
[Pages 55572-55576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17514]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0075]
RIN 1625-AA00


Safety Zones; Recurring Fireworks Displays and Swim Events in 
Coast Guard Sector New York Zone

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising its regulations for permanent 
safety zones in the Coast Guard Sector New York Captain of the Port 
Zone for recurring fireworks displays and swim events. This revision 
will update the list of events, alter the means of notification, and 
clarify the function of these safety zone regulations. The 
establishment of the safety zones is necessary to protect event 
participants, waterway users, and vessels from the potential hazards 
associated with these recurring organized water events. When subject to 
enforcement, no person is authorized to access the safety zones without 
permission from the Captain of the Port (COTP) or the COTP's designated 
representative.

DATES: This rule is effective August 16, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0075 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 MSTC Stacy Stevenson, Waterways Management Division, U.S. 
Coast Guard; telephone 718-354-4197, 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
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Captain of the Port New York (COTP) is establishing, amending, 
and updating annual and recurring swim events and fireworks safety 
zones codified in 33 CFR 165.160 in Tables 1 and 2, for the COTP zone.
    On May 4, 2023, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Safety Zones; Recurring Fireworks Displays 
and Swim Events in Coast Guard Sector New York Zone'' (88 FR 28444). 
There we stated why we issued the NPRM and invited comments on our 
proposed regulatory action related to this rule. During the comment 
period that ended June 5, 2023, we received two comments.
    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. Six firework displays are 
scheduled to occur in June. Delaying the effective date of this rule 
would be impracticable because the absence of a safety zone around 
barge-based fireworks displays within the COTP

[[Page 55573]]

zone poses a significant risk to public safety. Therefore, it is 
important to enforce the safety zones without delay to mitigate 
potential hazards to mariners and ensure effective management of vessel 
traffic around these displays.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The revision of Table 1 and Table 2 to Sec.  165.160 amends and 
updates recurring safety zones in the COTP zone. This rule will 
prohibit entry into those safety zones without permission of COTP to 
protect spectators, mariners, and other persons and property from 
potential hazards presented during the firework display or swim event 
associated with the safety zone.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published May 
4, 2023 (88 FR 28444). Both comments received were in favor of the rule 
overall.
    One commenter asked about the implementation of other safety 
precautions if the safety zone failed or was breached. These 
precautions include, but are not limited to, regular inspections, 
emergency response protocols, signage, and ongoing monitoring and 
evaluation of the safety zones' effectiveness. Additionally, many 
fireworks displays are scheduled to occur within areas monitored by the 
Vessel Traffic Center, who will ensure adequate notice and 
predictability in the New York and New Jersey waters through 
coordination of vessel movements and dissemination information.
    The second commenter, also in favor of the safety zones around 
fireworks displays, recommended that the fireworks take place in an 
area that prevents debris from entering the water and that a cleanup 
plan be in place. While the Coast Guard takes its role as an 
environmental steward seriously, the purpose of this safety zone is to 
manage traffic around the displays and ensure safety. This rulemaking 
does not contemplate the environmental concerns relative to the 
fireworks themselves, but of the impact on the environment by the 
safety zone. Therefore, this rule aligns with the principles of NEPA 
and underscores the commitment to mitigate adverse environmental 
effects while managing vessel traffic effectively. Further, the Coast 
Guard is not serving as the permitting agency for these events, they 
are coordinated by other government agencies.
    This rule updates Table 1 to Sec.  165.160 by consolidating all 
fireworks displays launched from a barge location to one row and 
removing other firework displays. This rule also completely replaces 
Table 2 to Sec.  165.160 with new swim events and their respective 
locations. Only event sponsors, designated participants of swim events, 
and official patrol vessels will be allowed to enter safety zones 
without needing to seek permission. Spectators and other vessels not 
registered as swim event participants cannot enter the safety zones 
without the permission of the COTP or the Designated Representative. 
Finally, the rule reorganizes and updates the text of Sec.  165.160 to 
be more understandable to the reader, as described in the NPRM.
    There are no changes to the regulatory text of this rule from the 
proposed rule in the NPRM.

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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on the ability of 
other waterway users to safely transit around the safety zones in many 
cases, and the size and duration of the safety zones will impact a 
small, designated area of the waterway for a relatively short period of 
time. Moreover, the Coast Guard will notify mariners of the enforcement 
via marine broadcasts, local notice to mariners, local news media, 
distribution in leaflet form, by an on-scene oral notice, or signage as 
appropriate. The rule will also allow vessels to seek permission to 
enter the zone if necessary.

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

[[Page 55574]]

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 prevents vessels 
from transiting areas specifically designated as safety zones during 
the periods they are subject to enforcement. 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. 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, 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. Revise Sec.  165.160 to read as follows:


Sec.  165.160  Safety Zones; Recuring Fireworks Displays and Swim 
Events Held in Coast Guard Sector New York Zone.

    (a) Regulations. The general regulations in subpart C of this part 
as well as the following regulations apply to the safety zones 
associated with the recurring fireworks displays and swim events listed 
in tables 1 or 2 to this section, respectively.
    (1) Under the general safety zone regulations in subpart C of this 
part, no person may enter the safety zone described in table 1 or 2 of 
this section unless authorized by the Captain of the Port (COTP) or the 
COTP's Designated Representative.
    (2) To seek permission to enter the designated safety zone, contact 
the COTP or the COTP's Designated Representative via VHF-FM Marine 
Channel 16, or by contacting the Coast Guard Sector New York command 
center at 718-354-4356.
    (3) Event organizers must ensure that fireworks barges have signage 
on their port and starboard side labeled ``Fireworks--Stay Away''. This 
sign will consist of 10-inch-high by 1.5-inch-wide red lettering on a 
white background.
    (4) Shore sites used in these locations will display a sign labeled 
``Fireworks--Stay Away'' with the same dimensions.
    (b) Definitions. As used in this section:
    Designated representative means any Coast Guard commissioned, 
warrant or petty officer of the U.S. Coast Guard who has been 
designated by the Captain of the Port to act on his or her behalf. The 
designated representative may be on an official patrol vessel or may be 
on shore and will communicate with vessels via VHF-FM radio or 
loudhailer. In addition, members of the Coast Guard Auxiliary may be 
present to inform vessel operators of this regulation.
    Official Patrol Vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned as an on- 
scene representative or approved by the COTP.
    Spectators means all persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Enforcement periods. (1) Safety zones for fireworks-display 
events listed in Table 1 of this section will be subject to enforcement 
for approximately one hour between 6 p.m. to 1 a.m. when a barge with a 
``Fireworks--Stay Away'' sign on the port and starboard side is on-
scene or a ``Fireworks--Stay Away'' sign is posted in a location listed 
in Table 1 to Sec.  165.160.
    (2) The regulations in this section will be subject to enforcement 
for the duration of each event on or about the dates indicated in Table 
2 of this section.
    (3) For events in Tables 1 and 2 that do not have a date or 
location listed, or if the event occurs on a date or location other 
than the one that is listed, then exact dates and times of the 
enforcement period will be announced via marine broadcast, local notice 
to mariners, distribution in leaflet form, local news media, or by an 
on-scene oral notice as appropriate.
    (4) Notifications of enforcement times for events listed in Table 1 
and 2, including any changes to the enforcement dates or times listed 
in this section, may be made via marine broadcasts, local notice to 
mariners, local news media, distribution in leaflet form, or by an on-
scene oral notice and signage.
    (d) Location. If the specific location of a safety zone for 
fireworks displays is not listed in Table 1, an announcement will be 
made by marine broadcast, local notice to mariners, distribution in 
leaflet form, local news media, or by an on-scene oral notice as 
appropriate. The specific locations of swim event safety zones are 
listed in Table 2. Any modification to the location of safety zones 
described in this section will be listed in USCG First District Local 
Notice to Mariners at: http://www.navcen.uscg.gov/.

[[Page 55575]]



              Table 1 to Sec.   165.160--Fireworks Displays
------------------------------------------------------------------------
             1.0 Event                          Location \1\
------------------------------------------------------------------------
1.1 Twin Island, Long Island Sound  Launch Site: A land shoot located on
 Safety Zone.                        the east end of Orchard Beach, NY,
                                     in approximate position
                                     40[deg]52'10'' N, 073[deg]47'07''
                                     W. This Safety Zone includes
                                     navigable waters within a 200-yard
                                     radius from the launch site.
1.2 Arthur Kill, Elizabeth, NJ      Launch Site: A land shoot located in
 Safety Zone.                        Elizabeth, NJ, in approximate
                                     position 40[deg]38'50'' N,
                                     074[deg]10'58'' W. This Safety Zone
                                     includes navigable waters within a
                                     150-yard radius from the launch
                                     site.
1.3 Wards Island, East River, NY    Launch Site: A land shoot located on
 Safety Zone.                        Wards Island in approximate
                                     position 40[deg]46'57'' N
                                     073[deg]55'28'' W, approximately
                                     330 yards north of the Robert F.
                                     Kennedy Bridge (Triborough Bridge).
                                     This Safety Zone includes navigable
                                     waters within a 200-yard radius
                                     from the launch site.
1.4 Barge Based Fireworks Displays  All waters within the Sector New
                                     York COTP Zone within an area up to
                                     a 500-yard radius of a firework
                                     barge or barges used during the
                                     storage, preparation, and launching
                                     of fireworks.
------------------------------------------------------------------------
\1\ All coordinates listed in Table 1 to Sec.   165.01-165.160 reference
  Datum NAD 1983.


                 Table 2 to Sec.   165.160--Swim Events
------------------------------------------------------------------------
             1.0 Event                        Date/location \1\
------------------------------------------------------------------------
1.1 Hudson River, Ulster, NY, Swim  Date: The first weekend after the
                                     4th of July.
                                    Location: The safety zone includes
                                     all navigable waters of the Hudson
                                     River in the vicinity of Ulster
                                     Landing, bound by the following
                                     coordinates:
                                    42[deg]00'03.7'' N,
                                     073[deg]56'43.1'' W, thence to
                                    41[deg]59'52.5'' N,
                                     073[deg]56'34.2'' W, to
                                    42[deg]00'15.1'' N,
                                     073[deg]56'25.2'' W, to
                                    42[deg]00'05.4'' N,
                                     073[deg]56'41.9'' W, thence along
                                     the shoreline to the point of
                                     origin.
1.2 Hudson River, Nyack to          Date: 2nd weekend in September.
 Kingsland Point Swim.              Location: The safety zone includes
                                     all navigable waters of the Hudson
                                     River between Nyack, NJ and the
                                     Tarrytown Lighthouse bound by the
                                     following coordinates:
                                    41[deg]05'10.7'' N, 073[deg]55'03''
                                     W, thence to
                                    41[deg]05'02'' N, 073[deg]52'25'' W,
                                     to
                                    41[deg]05'19'' N, 073[deg]52'22'' W,
                                     to
                                    41[deg]05'25'' N, 073[deg]54'51'' W
                                     thence along the shoreline to the
                                     point of origin.
1.3 Navy Seal Swim, New York        Date: One Saturday or Sunday in
 Harbor.                             August.
                                    Location: The safety zone includes
                                     all navigable waters bound by the
                                     following coordinates:
                                    40[deg]41'26'' N, 74[deg]03'17'' W,
                                     thence to
                                    40[deg]41'02'' N, 74[deg]02'25'' W,
                                     to
                                    40[deg]41'40'' N, 74[deg]02'00'' W,
                                     to
                                    40[deg]42'25'' N, 74[deg]01'08'' W,
                                     to
                                    40[deg]42'28'' N, 74[deg]01'07'' W,
                                     to
                                    40[deg]41'57'' N, 74[deg]02'07'' W,
                                     to
                                    40[deg]41'40'' N, 74[deg]02'30'' W,
                                     to
                                    40[deg]41'24'' N, 74[deg]02'27'' W,
                                     to
                                    40[deg]41'12'' N, 74[deg]02'38'' W,
                                     to
                                    40[deg]41'29'' N, 74[deg]03'15'' W,
                                     thence back to the point of origin.
1.4 Hudson River, Newburgh to       Date: One Saturday or Sunday in
 Beacon Swim.                        July.
                                    Location: The safety zone includes
                                     all navigable waters of the Hudson
                                     River between Newburgh and Beacon,
                                     NY bound by the following
                                     coordinates:
                                    41[deg]30'24.2'' N, 074[deg]0'17.4''
                                     W, thence to
                                    41[deg]30'27.8'' N,
                                     073[deg]59'16.8'' W, to
                                    41[deg]30'11.6'' N,
                                     073[deg]59'19.9'' W, to
                                    41[deg]30'03.4'' N, 074[deg]0'17.2''
                                     W, thence north along the shoreline
                                     to the point of origin.
1.5 Long Island Sound, Horseshoe    Date: 4th weekend in July and 2nd
 Harbor Swim.                        weekend in August.
                                    Location: The safety zone includes
                                     all navigable waters of the Long
                                     Island Sound bound by the following
                                     coordinates:
                                    40[deg]55'32'' N, 73[deg]44'37'' W,
                                     thence southeast to
                                    40[deg]55'28'' N, 73[deg]44'14'' W,
                                     to
                                    40[deg]55'01'' N, 73[deg]43'59'' W,
                                     to
                                    40[deg]54'01'' N, 73[deg]44'17'' W,
                                     to
                                    40[deg]54'48'' N, 73[deg]45'10'' W,
                                     thence along the shoreline back to
                                     the point of origin.
1.6 New York Harbor, Liberty        Date: One weekend in July.
 Island to Morris Canal Swim.       Location: The safety zone includes
                                     all navigable waters of the New
                                     York Harbor bound by the following
                                     coordinates:
                                    40[deg]41'27'' N, 74[deg]02'25'' W,
                                     thence to
                                    40[deg]41'22'' N, 74[deg]02'13'' W,
                                     to
                                    40[deg]41'36'' N, 74[deg]02'04'' W,
                                     to
                                    40[deg]42'39'' N, 74[deg]01'42'' W,
                                     to
                                    40[deg]42'42'' N, 74[deg]02'05'' W,
                                     to
                                    40[deg]42'31'' N, 74[deg]01'55'' W,
                                     thence back to the point of origin.
------------------------------------------------------------------------
\1\ All coordinates listed in Table 2 to Sec.   165.01-165.160 reference
  Datum NAD 1983.



[[Page 55576]]

    Dated: June 24, 2023.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2023-17514 Filed 8-15-23; 8:45 am]
BILLING CODE 9110-04-P