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###### Department of Transportation

###### Coast Guard 

          - 33 CFR Part 165 
          - [CGD01-00-009] 
          - RIN 2115-AA97 

# AGENCY:

Coast Guard, DOT. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Coast Guard proposes to establish four temporary safety zones for fireworks displays located on New York Harbor, the East River, and Hudson River, and one temporary safety zone for Search and Rescue demonstrations on the Hudson River. This action is necessary to provide for the safety of life on navigable waters during the events. This action is intended to restrict vessel traffic in portions of New York Harbor, the East River, and the Hudson River. 

# DATES:

Comments and related material must reach the Coast Guard on or before May 31, 2000. 

# ADDRESSES:

You may mail comments and related material to Waterways Oversight Branch (CGD01-00-009), Coast Guard Activities New York, 212 Coast Guard Drive, room 205, Staten Island, New York 10305. The Waterways Oversight Branch of Coast Guard Activities New York maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 205, Coast Guard Activities New York, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

                        Lieutenant M. Day, Waterways Oversight Branch, Coast Guard Activities New York (718) 354-4012.                               ( print page 31294)    

# SUPPLEMENTARY INFORMATION:

## Request for Comments 

                    We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-00-009), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.                 

The Coast Guard is limiting the comment period for this NPRM to 14 days because the Coast Guard did not know about the final event plans until May 1, 2000. Further, these proposed zones are in effect in New York Harbor only and they are for four or six hour events. Finally, there is not sufficient time to publish a Temporary final rule 30 days before the events and provide a longer comment period than 14 days. 

## Public Meeting 

                    We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Oversight Branch at the address under                     **ADDRESSES**                     explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the                     **Federal Register**                    .                 

## Background and Purpose 

The Coast Guard proposes to establish four temporary safety zones for fireworks displays, and one temporary safety zone for Search and Rescue demonstrations being held in conjunction with OPSAIL 2000. 

## Macy's/OPSAIL 2000 Fireworks 

The Coast Guard proposes to establish four temporary safety zones for the Macy's/OPSAIL 2000 fireworks display in New York Harbor, the East River, and Hudson River, on July 4, 2000. The first proposed safety zone includes all waters of the East River east of a line drawn from the Fireboat Station Pier, Battery Park City, in approximate position 40°42′15.5″N 074°01′07″W (NAD 1983) to Governors Island Light (2) (LLNR 35010), in approximate position 40°41′34.5″N 074°01′11″W (NAD 1983); north of a line drawn from Governors Island, in approximate position 40°41′25.3″N 074°00′42.5″W (NAD 1983) to the southwest corner of Pier 9A, Brooklyn; south of a line drawn through the southern point of Roosevelt Island from East 47th Street, Manhattan to 46 Road, Brooklyn, and all waters of Newtown Creek west of the Pulaski Bascule Bridge. 

Vessels equal to or greater than 20 meters (65.6 feet) in length, carrying persons for the purpose of viewing the fireworks, may take position in an area inside the safety zone at least 200 yards off the bulkhead on the west bank and just off the pierhead faces on the east bank of the East River between the Williamsburg Bridge and a line drawn through the East River Main Channel Lighted Buoy 18 (LLNR 27335), to a point on the Brooklyn shore at North 9th Street. All vessels must be in this location by 6:30 p.m. (e.s.t.) on July 4, 2000. 

Once in position within the zone, all vessels must remain in position until released by the Captain of the Port, New York. On-scene-patrol personnel will monitor the number of designated vessels taking position in the viewing area of the zone. If it becomes apparent that any additional spectator vessels in the viewing area will create a safety hazard, the patrol commander may prevent additional vessels from entering it. After the event has concluded and the fireworks barges have safely relocated outside of the main channel, vessels will be allowed to depart the viewing area as directed by the patrol commander. 

We created the viewing area within this safety zone in order to reduce significant safety hazards in this area of the East River, due in great part, to the extremely strong currents. Based on experience from similar events in this area of the East River, we are concerned that smaller spectator craft located in between the two fireworks barge sites could drift into the fallout zone of either barge site. Additionally, experience from previous events has also shown that having large and small craft located in a confined area presents safety hazards for both sized vessels due to vessel wake, anchor swing radii, and restricted visibility of larger vessels in a confined area. 

One safety zone is required for this large section of the East River because the Coast Guard has a limited amount of assets available to patrol this event of national significance. If we made this zone into two zones, we could not adequately enforce the boundaries of both zones, and the safety of the port and the mariners would be unacceptably compromised because of the two nearby fireworks barge locations in a confined waterway with significant currents. 

The Staten Island Ferries may continue services to their ferry slip at Whitehall Street, The Battery, Manhattan, New York. Continuing ferry services in the southwestern portion of the safety zone will not create a hazard nor be threatened by the fireworks display because Vessel Traffic Services New York will monitor and control the transits of these ferries. Failure to allow these continued ferry services will have a negative impact on residents of Staten Island, New York, and those persons traveling to and from Manhattan at the end of the holiday weekend. 

The second proposed safety zone includes all waters of the Hudson River north of a line drawn from the southwest corner of Pier 94, Manhattan, to 40°46′31.3″N, 074°00′37.9″W (NAD 1983) onshore in Weehawken, NJ, and south of a line drawn from the northeast corner of Pier D, Weehawken, NJ, to the northwest corner of the northern pier of the West 30th Street Heliport in Manhattan. 

The third proposed safety zone includes all waters of Upper New York Bay, east of Liberty Island, bound by the following points: 40°41′33.2″N 074°02′24.4″W; 40°41′11.3″N 074°02′44.4″W; 40°41′02.1″N 074°02′25.1″W; 40°41′09.1″N 074°02′10.2″W; 40°41′25.6″N 074°02′09.6″W (NAD 1983); thence to the point of beginning. 

The fourth proposed safety zone includes all waters of Anchorage Channel, Upper New York Bay, bound by the following points: 40°38′12.4″N 074°03′05.6″W; 40°38′01.5″N 074°03′00.7″W; 40°37′21.0″N 074°02′50.0″W; 40°37′15.6″N 074°03′16.6″W; 40°38′08.3″N 074°03′37.4″W (NAD 1983); thence to the point of beginning. 

The proposed safety zones are effective from 6:30 p.m. (e.s.t.) until 11:30 p.m. (e.s.t.) on July 4, 2000. If the event is cancelled due to inclement weather, then this section is effective from 6:30 p.m. (e.s.t) until 11:30 p.m. (e.s.t.) on July 5, 2000. The proposed safety zones prevent vessels from transiting these portions of Upper New York Bay, the East River and the Hudson River, and is needed to protect boaters from the hazards associated with fireworks launched from 13 separate barges in the area. No vessel may enter the safety zones without permission of the Captain of the Port, New York. 

                    These safety zones cover the minimum area needed and impose the minimum restrictions necessary to ensure the protection of all vessels and                           ( print page 31295)                        the fireworks handlers aboard the barges.                 

Public notifications will be made prior to the event via Local Notice to Mariners, marine information broadcasts, facsimile, OPSAIL Inc.'s website, and Macy's waterways telephone “hotline” at 212-494-5247, which is scheduled to be activated approximately June 1, 2000. 

## Search and Rescue Demonstrations 

The Coast Guard also proposes to establish a temporary safety zone for the OPSAIL Search and Rescue demonstrations held on and over the Hudson River between Piers 83 and 90. This proposed safety zone includes all waters of the Hudson River bound by the following points: from the southeast corner of Pier 90, Manhattan, where it intersects the seawall, west to approximate position 40°46′10″ N, 074°00′113″1 W (NAD 1983), south to approximate position 40°45′154″1 N, 074°00′125″1 W (NAD 1983), then east to the northeast corner of Pier 83 where it intersects the seawall. This proposed safety zone is effective from 12 p.m. (e.s.t.) until 6 p.m. (e.s.t.), Thursday, July 6, through Saturday, July 8, 2000. It is needed to protect boaters and demonstration participants from the hazards associated with United States Military personnel demonstrating the capabilities of aircraft and watercraft in a confined area of the Hudson River. This safety zone prevents vessels from transiting only a portion of the Hudson River. Marine traffic will still be able to transit through the western 600 yards of the 950-yard wide Hudson River during the Search and Rescue demonstrations. Vessels moored at piers within the safety zone; however, will not be allowed to transit from their moorings without permission from the Captain of the Port, New York, during the effective periods of the safety zone. The Captain of the Port does not anticipate any negative impact on recreational or commercial vessel traffic due to this safety zone. 

Public notifications will be made prior to the Search and Rescue Demonstrations via Local Notice to Mariners, marine information broadcasts, facsimile, and OPSAIL Inc.'s website. 

## Discussion of Proposed Rule 

                    The proposed sizes of the fireworks safety zones were determined using National Fire Protection Association and New York City Fire Department standards for 10-12 inch mortars fired from a barge, combined with the Coast Guard's knowledge of tide and current conditions in these areas. These events are being held in conjunction with OPSAIL 2000. A NPRM was published for OPSAIL 2000 in the                     **Federal Register**                     on February 7, 2000 (65 FR 5833), a correction to this NPRM was published on February 14, 2000 (65 FR 7333). This proposed regulation would establish five safety zones. The regulations will be in effect at various times in the Port of New York/New Jersey during the period July 4—8, 2000. This proposed rulemaking is necessary to ensure the safety of life on the navigable waters of the United States and to give the marine community the opportunity to comment on these events.                           ( print page 31296)    

## Regulatory Evaluation 

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). 

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. 

Although this regulation prevents traffic from transiting a portion of New York Harbor, the Hudson River, and East River, the effect of this regulation will not be significant for the following reasons: the limited duration that the regulated areas will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, facsimile, marine information broadcasts, the sponsor's website and phone hotline, New York Harbor Operations Committee meetings, public meetings for maritime groups, and New York area newspapers, so mariners can adjust their plans accordingly. At no time will commercial shipping access to Port Newark/Port Elizabeth facilities be prohibited. Access to those areas may be accomplished using Raritan Bay, Arthur Kill, Kill Van Kull, and Newark Bay as an alternate route. This will allow the majority of the maritime industrial activity in the Port of New York/New Jersey to continue, relatively unaffected. Similar regulated areas were established for the 1986 and 1992 OPSAIL events, the annual Macy's July 4th fireworks display, and the annual Fleet Week Sea and Air demonstrations. Based upon the Coast Guard's experiences learned from these previous events of a similar magnitude, these proposed regulations have been narrowly tailored to impose the least impact on maritime interests yet provide the level of safety deemed necessary. 

## Small Entities 

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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. 

For the reasons discussed in the Regulatory Evaluation section above, 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. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in portions of Lower and Upper New York Bay, the Hudson River, and East River during various times from July 4-8, 2000. These regulations would not have a significant economic impact on a substantial number of small entities for the following reasons. Although these regulations would apply to a substantial portion of the Port of New York/New Jersey, designated areas for viewing the Fourth of July Fireworks are being established to allow for maximum use of the waterways by commercial tour boats that usually operate in the affected areas. Maritime traffic would also be able to transit around the areas where the Search and Rescue demonstrations are being held. Before the effective period, the Coast Guard would make notifications to the public via mailings, facsimiles, the Local Notice to Mariners and use of the sponsors Internet site. The Coast Guard is also holding public meetings with maritime groups to explain the schedule of events and approved spectator craft viewing areas. In addition, the sponsoring organization, OPSAIL Inc., is planning to publish information of the event in local newspapers, pamphlets, and television and radio broadcasts. 

                    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this 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.                 

## Assistance for Small Entities 

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 so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant M. Day, Waterways Oversight Branch, Coast Guard Activities New York (718) 354-4012. 

## 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.). 

## Federalism 

We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order. 

## Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate. 

## Taking of Private Property 

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. 

## Civil Justice Reform 

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. 

## Protection of Children 

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. 

## Environment 

                    We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation. This proposed rule fits paragraph 34(g) as it establishes five safety zones. A “Categorical Exclusion Determination” is available in the docket where indicated under                     **ADDRESSES.**      ( print page 31297)    

# 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 proposes to amend 33 CFR part 165 as follows: 

# PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for Part 165 continues to read as follows: 

Authority:33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 49 CFR 1.46. 

2. Add temporary § 165.T01-009 to read as follows: 

§ 165.T01-009 

                            (a)                             *Safety Zones Locations and Enforcement Periods.*

                            (1)                             *East River Fireworks Safety Zone:*                             All waters of the East River east of a line drawn from the Fireboat Station Pier, Battery Park City, in approximate position 40°42′15.5″N 074°01′07″ W (NAD 1983) to Governors Island Light (2) (LLNR 35010), in approximate position 40°41′34.5″N 074°01′11″ W (NAD 1983); north of a line drawn from Governors Island, in approximate position 40°41′25.3″N 074°00′42.5″W (NAD 1983) to the southwest corner of Pier 9A, Brooklyn; south of a line drawn through the southern point of Roosevelt Island from East 47th street, Manhattan to 46 Road, Brooklyn, and all waters of Newtown Creek west of the Pulaski Bascule Bridge.                         

                            (2)                             *Hudson River Fireworks Safety Zone.*                             All waters of the Hudson River north of a line drawn from the southwest corner of Pier 94, Manhattan, to 40°46′31.3″N, 074°00′37.9″W (NAD 1983) onshore in Weehawken, NJ, and south of a line drawn from the northeast corner of Pier D, Weehawken, NJ, to the northwest corner of the northern pier of the West 30th Street Heliport in Manhattan.                         

                            (3)                             *Liberty Island Fireworks Safety Zone.*                             All waters of Upper New York Bay, east of Liberty Island, bound by the following points: 40°41′33.2″N 074°02′24.4″W; 40°41′11.3″N 074°02′44.4″W; 40°41′02.1″N 074°02′25.1″W; 40°41′09.1″N 074°02′10.2″W; 40°41′25.6″N 074°02′09.6″W (NAD 1983); thence to the point of beginning.                         

                            (4)                             *Anchorage Channel Fireworks Safety Zone.*                             All waters of Anchorage Channel, Upper New York Bay, bound by the following points: 40°38′12.4″N 074°03′05.6″W; 40°38′01.5″N 074°03′00.7″W; 40°37′21.0″N 074°02′50.0″W; 40°37′15.6″N 074°03′16.6″W; 40°38′08.3″N 074°03′37.4″W (NAD 1983); thence to the point of beginning.                         

                            (5)                             *Search and Rescue Demonstrations Safety Zone:*                             All waters of Hudson River bound by the following points: from the southeast corner of Pier 90, Manhattan, where it intersects the seawall, west to approximate position 40°46′10″ N, 074°00′13″ W (NAD 1983), south to approximate position 40°45′54″ N, 074°00′25″ W (NAD 1983), then east to the northeast corner of Pier 83 where it intersects the seawall.                         

                            (6)                             *Enforcement period.*                             Paragraphs (a)(1) through (a)(4) are effective from 6:30 p.m. (e.s.t.) until 11:30 p.m. (e.s.t.) on Tuesday, July 4, 2000. If the event is cancelled due to inclement weather, then paragraphs (a)(1) through (a)(4) are effective from 6:30 p.m. (e.s.t.) to 11:30 p.m. (e.s.t.) on Wednesday, July 5, 2000.                         

                            (7)                             *Enforcement period.*                             Paragraph (a)(5) is effective daily from 12 p.m. (e.s.t.) until 6 p.m. (e.s.t.) from Thursday, July 6, through Saturday, July 8, 2000.                         

                            (b)                             *Effective period.*                             This section is effective from 6:30 p.m. (e.s.t.) on July 4, 2000, until 6 p.m. (e.s.t.) on July 8, 2000.                         

                            (c)                             *Regulations.*                             (1) The general regulations contained in 33 CFR 165.23 apply.                         

(2) No vessels will be allowed to transit the safety zone without the permission of the Captain of the Port, New York. 

(3) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. These personnel comprise commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. 

(4) Vessels may remain in the safety zone described in paragraph (a)(1) for the purpose of viewing the event in accordance with the following pre-established viewing area: Vessels equal to or greater than 20 meters (65.6 feet) in length, carrying persons for the purpose of viewing the fireworks, may take position in an area at least 200 yards off the bulkhead on the west bank and just off the pierhead faces on the east bank of the East River between the Williamsburg Bridge and a line drawn through the East River Main Channel Lighted Buoy 18 (LLNR 27335), to a point on the Brooklyn shore at North 9th Street. All vessels must be positioned in this viewing area within the safety zone by 6:30 p.m. (e.s.t.) on July 4, 2000. 

Dated: May 11, 2000. 

R.E. Bennis, 

Captain, U. S. Coast Guard,, Captain of the Port, New York. 

[FR Doc. 00-12415 Filed 5-12-00; 5:05 pm] 

BILLING CODE 4910-15-P