[Federal Register Volume 89, Number 164 (Friday, August 23, 2024)]
[Rules and Regulations]
[Pages 68102-68104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18865]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0225]
RIN 1625-AA00


Safety Zones; Aerial Drone Displays, Hudson and East Rivers, New 
York, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing specific areas of the Hudson 
and East Rivers where safety zones will be enforced on the navigable 
waters beneath aerial drone shows. This action is necessary to protect 
personnel, vessels, and the marine environment from potential hazards 
created by aerial drone displays. This final rule would prohibit 
persons and vessels from being in the safety zone unless authorized by 
the Captain of the Port Sector New York or a designated representative.

DATES: This rule is effective September 23, 2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0225 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 about this rule, 
call or email MST1 Melanie Hughes, Sector New York Waterways Management 
Division, U.S. Coast Guard; 718-354-4352, [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

    From November 2022 until June 2024, U.S. Coast Guard Sector New 
York received 13 requests for aerial drones displays within the Captain 
of The Port's (COTP) area of responsibility. Of those 13 requests, 10 
have either taken place or were planned to take place in areas above 
the Hudson and East Rivers. In all cases, the sponsors of the drone 
displays requested safety zones beneath the drones' flight path. The 
request for safety zones is driven by Federal Aviation Administration 
(FAA) regulation that drones cannot safely fly over human beings. It is 
becoming increasingly more common to hold aerial drone displays over 
the water to reduce the number of occupants immediately below a drone 
show. In response, on May 24, 2024, the Coast Guard published a notice 
of proposed rulemaking (NPRM) titled Safety Zones; Aerial Drone 
Displays, Hudson and East Rivers, New York, NY (89 FR 45803). 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 24, 2024, we received three comments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The COTP New York has determined the potential hazards 
associated with drone shows to be a safety concern for anyone directly 
underneath the flight path of aerial drone displays. The purpose of 
this rule is to ensure the safety of human life and vessels on the 
navigable waters of the Hudson and East Rivers

[[Page 68103]]

while a drone show is taking place overhead.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received three comments; one was submitted 
directly to the docket and the other two were emailed to the Coast 
Guard point of contact referenced in the FOR FURTHER INFORMATION 
CONTACT section and have since been added to the docket, on our NPRM 
published May 24, 2024. Although we received three comments, there are 
no changes in the regulatory text of this rule from the proposed rule 
in the NPRM.
    One commenter asked whether a barge would be allowed to remain in 
place while a safety zone is being enforced. The commenter stated that 
removing a barge would entail additional costs if it were required to 
move. The rule allows entry and occupancy in the designated safety zone 
by contacting 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. Such requests as the commenter presents 
will be considered on a case-by-case basis with regards to the safety 
of the event and users of the waterway. Additionally, Zones 1 and 2 
occur within areas monitored by the Coast Guard's Vessel Traffic 
Center, who will ensure adequate notice and predictability in the 
waters through coordination of vessel movements and dissemination of 
information.
    One commenter inquired about a scenario where the City of New York 
would need to pass through a closed safety zone in order to inspect 
and/or repair a location that is deemed an emergency and whether they 
would be given special permission to do so. This rule allows all 
vessels, not just those operated by the City of New York, to seek 
permission to enter the zone if necessary. The COTP can grant access on 
a case-by-case basis into the regulated area. To seek access into a 
safety zone, you may contact the Sector New York Command Center at 718-
354-4356 or use VHF channel 13 or 16. Additionally, the Coast Guard 
anticipates any enforcement of a regulated area to be of a short 
duration (while drones are in flight, typically between 10-20 minutes 
at a time) and impact a small, designated area of the waterway. In many 
cases, vessels can safely transit around the safety zone. The areas 
designated as Zone 1 (Hudson River) and Zone 2 (East River) will not be 
enforced in their entirety, rather, a smaller portion of the zone will 
be enforced to cover all waters beneath the drone's flight path. The 
Coast Guard anticipates, on average, that these safety zones would only 
cover the waters within a 200-yard radius of the aerial drone display. 
However, safety zones could be established up to a radius of 500-yards 
from the aerial drone display.
    One commenter requested to know if Pier 89 and Pier 90, near the 
Intrepid Museum (Pier 86), on the Hudson River were included in Zone 1 
(Hudson River). Zone 1 (Hudson River) covers all waters of the Hudson 
River extending from lower Manhattan (Staten Island Ferry, Whitehall 
terminal) north to Pier 99.
    This rule establishes designated zones on the Hudson and East 
Rivers in which a safety zone radius up to 500-yards will be 
established for aerial drone displays. The establishment of a safety 
zone within a designated zone requires the coordinates defining the 
center of the safety zone to be within the boundaries of one of the 
zones.

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, or by an on-scene oral notice 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

[[Page 68104]]

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 
designating areas on the Hudson and East Rivers where safety zones can 
be established underneath drone shows. It is categorically excluded 
from further review under paragraph L60a 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. Add Sec.  165.166 to read as follows:


Sec.  165.166  Safety Zones; Coast Guard Captain of the Port New York 
Zone Drone Displays.

    (a) Locations. The following areas are designated zones in which a 
safety zone with a radius up to 500-yards will be established for drone 
shows. The establishment of a safety zone within a designated zone 
requires the coordinates defining the center of the safety zone to be 
within the boundaries of one of the zones described as follows:
    (1) Hudson River Zone 1: All waters of the Hudson River to include 
Morris Canal Basin in the vicinity of lower Manhattan, from surface to 
bottom, encompassed by a line connecting the following points beginning 
at 40[deg]42'20.9'' N, 74[deg]02'05.7'' W; traveling north along the 
shoreline thence to 40[deg]46'41.1'' N, 74[deg]00'30.4'' W; thence to 
40[deg]46'22.2'' N, 73[deg]59'38.3'' W; traveling south along the 
shoreline thence to 40[deg]42'02.0'' N, 74[deg]00'51.1'' W; and back to 
the point of origin.
    (2) East River Zone 2: All waters of the East River in the vicinity 
of lower Manhattan, from surface to bottom, encompassed by a line 
connecting the following points beginning at 40[deg]42'01.6'' N, 
74[deg]00'48.7'' W; traveling north along the shoreline thence to 
40[deg]46'38.0'' N, 73[deg]56'31.6'' W; thence to 40[deg]46'33.2''N, 
73[deg]56'13.4'' W; traveling south along the shoreline thence to 
40[deg]44'17.2'' N, 73[deg]57'38.7'' W; thence to 40[deg]44'11.6'' N, 
73[deg]57'37.0'' W; continuing south along the shoreline thence to 
40[deg]41'35.7'' N, 74[deg]00'14.3'' W; and back to the point of 
origin. These coordinates are based on Datum WGS 84.
    (b) Definitions. As used in this section:
    Designated representative means a 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 New York Zone in the 
enforcement of the safety zone.
    Official Patrol Vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned as an on-
scene representative approved by the COTP.
    Spectators means all persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Regulations. (1) When enforced, 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 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. 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 periods. The COTP will make notification of the 
exact dates and times in advance of each enforcement period for the 
locations above in paragraph (a) of this section to the local maritime 
community through marine broadcasts, local notice to mariners, local 
news media, distribution in leaflet form, or by an on-scene oral notice 
and signage.

Jonathan A. Andrechik,
Captain, U.S. Coast Guard, Captain of the Port, Sector New York.
[FR Doc. 2024-18865 Filed 8-22-24; 8:45 am]
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