[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Rules and Regulations]
[Pages 48718-48722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20093]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0688]
RIN 1625-AA00


Safety Zones; August Fireworks Displays and Swim Events in the 
Captain of the Port New York Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing four temporary safety zones 
for marine events within the Coast Guard Captain of the Port (COTP) New 
York Zone for fireworks displays and swim events. This action is 
necessary to provide for the safety of life on navigable waters during 
the events. Entry into, transit through, mooring or anchoring within 
these zones is prohibited unless authorized by the COTP New York.

DATES: This rule is effective in the CFR on August 9, 2011 to 11:59 
p.m. August 27, 2011. This rule is effective with actual notice for 
purpose of enforcement beginning at 12 p.m. August 6, 2011 to 11:59 
p.m. August 27, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0688 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0688 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail LT Eunice James, Coast Guard Sector New 
York Waterways Management Division; 718-354-4163, e-mail 
<a href="/cdn-cgi/l/email-protection#b5f0c0dbdcd6d09bf49bffd4d8d0c6f5c0c6d6d29bd8dcd9"><span class="__cf_email__" data-cfemail="81c4f4efe8e2e4afc0afcbe0ece4f2c1f4f2e2e6afece8ed">[email protected]</span></a>. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because any delay encountered in this 
regulation's effective date by publishing a NPRM would be contrary to 
public interest, since immediate action is needed to provide for the 
safety of life and property on navigable waters from the hazards 
associated with fireworks including unexpected detonation and burning 
debris; also immediate action is needed to provide for the safety of 
life and property on navigable waters from the hazards associated with 
swimmers in the water in or near navigable channels. We spoke with each 
event sponsor and each indicated they were unable and unwilling to move 
their event date to a later time. Sponsors for the Ocean Breeze Fishing 
Pier Fireworks Display stated they are unwilling to reschedule this 
event because it is being held in conjunction with a prescheduled 
concert sponsored by the Staten Island Borough President's Office. 
Changing the date would cause numerous cancelations and hurt small 
businesses. Rescheduling would not be

[[Page 48719]]

a viable option because the event venue, venders, and artists have 
fully booked summer schedules making rescheduling nearly impossible. 
Sponsors for the Annual Newburgh to Beacon Swim, Swim Across America, 
and the Rose Pintoff Centennial Swim stated they are unwilling to 
reschedule these events because the dates of each swim event were 
chosen based on optimal tide, current, and weather conditions needed to 
promote the safety of swim participants. In addition, any change to the 
dates of the events would cause economic hardship on the marine event 
sponsors, negatively impacting other activities being held in 
conjunction with these events, potentially cause numerous event 
participant cancellations, and create unsafe event conditions.
    Additionally, due to the dangers posed by the pyrotechnics used in 
fireworks displays and the hazards associated with swim events, the 
safety zones are necessary to provide for the safety of event 
participants, spectator crafts, and other vessels operating near the 
event areas. For the safety concerns noted, it is in the public 
interest to have this regulation in effect during these events.
    These fireworks displays and swim events are all reoccurring marine 
events with a proposed permanent rule currently in a public comment 
period under docket number USCG-2010-1001 titled, Special Local 
Regulations and Safety Zones; Recurring Events in Captain of the Port 
New York Zone. Additionally, the Coast Guard has ordered safety zones 
or special local regulations for all of these areas for past events and 
has not received public comments or concerns regarding establishment of 
waterways restrictions.
    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. The rule must become effective on 
the dates specified in Table 1 and Table 2 in order to provide for the 
safety of the public including spectators and vessels operating in the 
area near these events. Delaying the effective date of this rule until 
after 30 days have elapsed after publication is impractical and would 
expose spectators, vessels, and other property to the hazards 
associated with these marine events.

Basis and Purpose

    The legal basis for the temporary rule is 33 U.S.C. 1226, 1231, 46 
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295, 
116 Stat. 2064; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define safety 
zones.
    The fireworks display and swim events are being held during the 
month of August on the navigable waters within the COTP New York Zone. 
In the past, the Coast Guard has established safety zones for these 
events on a case by case basis to ensure the protection of the maritime 
public and event participants from the hazards associated with these 
events. The Coast Guard has not received public comments or concerns 
regarding the impact to waterway traffic from these events.
    This temporary final rule will apprise the public in a timely 
manner through publication in the Federal Register.
    These events pose significant risk to participants, spectators and 
the maritime public because of hazardous conditions associated with 
fireworks displays and swim events. These temporary safety zones are 
necessary to ensure the safety of participants, spectators and vessels.

Discussion of Rule

    This rule establishes temporary safety zones on the waters of the 
COTP New York zone. These temporary safety zones will encompass various 
locations, listed in Table 1 and Table 2 below.
    All persons and vessels shall comply with the instructions of the 
COTP New York or the designated on-scene representative. Entry into, 
transiting, or anchoring within the temporary safety zones are 
prohibited unless authorized by the COTP New York, or the designated 
representative. The COTP New York or the designated representative may 
be reached on VHF Channel 16.
    Because large numbers of spectator vessels are expected to 
congregate around the location of these events, the regulated areas are 
needed to protect both spectators and participants from the safety 
hazards created by fireworks displays and swimmers in the water. During 
the enforcement period of the regulated areas, persons and vessels are 
prohibited from entering, transiting through, remaining, anchoring or 
mooring within the zone unless specifically authorized by the COTP or 
the designated representatives. The Coast Guard may be assisted by 
other federal, state and local agencies in the enforcement of these 
regulated areas.
    The Coast Guard determined that these regulated areas will not have 
a significant impact on vessel traffic due to their temporary nature 
and limited size and the fact that vessels are allowed to transit the 
navigable waters outside of the regulated areas. Additionally, the 
Coast Guard has ordered safety zones for all of these four areas for 
past events and has not received public comments or concerns regarding 
the impact to waterway traffic from events.
    Advanced public notifications will also be made to the local 
maritime community by the Local Notice to Mariners as well as Broadcast 
Notice to Mariners.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, as supplemented by Executive Order 13563, 
Regulatory Planning and Review, 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.
    The Coast Guard's implementation of these temporary safety zones 
will be of short duration and designed to minimize the impact to vessel 
traffic on the navigable waters. These safety zones will only be 
enforced for a short duration. Furthermore, vessels may be authorized 
to transit the zones with permission of the COTP New York or the 
designated on-scene representative.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will affect the following entities, some of which may be 
small entities: the owners and operators of vessels intending to 
transit or anchor in a portion of the navigable waterway in the 
vicinity of these marine events during the effective period.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessel 
traffic can

[[Page 48720]]

safely transit around these safety zones or through the zones with 
permission of the COTP New York or the designated on-scene 
representative. Before the effective period, we will issue maritime 
advisories widely available to users of the waterway. This rule will be 
in effect for a short duration at various times from August 06, 2011 
until August 27, 2011.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves the establishment of 
temporary safety zones. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

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:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; Public Law 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0688 to read as follows:


Sec.  165.T01-0688  Safety Zones; August Fireworks Displays and Swim 
Events in the Captain of the Port New York Zone.

    (a) Regulations. The general regulations contained in 33 CFR 165.23 
as well as the following regulations apply to the fireworks displays 
and swim events listed in Table 1 and Table 2 of Sec.  165.T01-0688. 
These regulations

[[Page 48721]]

will be enforced for the duration of each event. Notifications of exact 
dates and times of the enforcement period will be made to the local 
maritime community through the Local Notice to Mariners, and Broadcast 
Notice to Mariners. First Coast Guard District Local Notice to Mariners 
can be found at http://www.navcen.uscg.gov/.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the COTP, Sector New York 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.
    (2) Official patrol vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (3) Spectators. All persons and vessels not registered with the 
event sponsor as participants or official patrol vessels.
    (c) Vessel operators desiring to enter or operate within the 
regulated areas shall contact the COTP or the designated representative 
via VHF channel 16 or 718-354-4353 (Sector New York command center) to 
obtain permission to do so.
    (d) Spectators or other vessels shall not anchor, block, loiter, or 
impede the transit of event participants or official patrol vessels in 
the regulated areas during the effective dates and times, or dates and 
times as modified through the Local Notice to Mariners, unless 
authorized by COTP or designated on-scene representative.
    (e) Upon being hailed by a U.S. Coast Guard vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed. Failure to 
comply with a lawful direction may result in expulsion from the area, 
citation for failure to comply, or both.
    (f) The COTP or the designated representative may delay or 
terminate any marine event in this subpart at any time it is deemed 
necessary to ensure the safety of life or property.
    (g) The regulated area for all fireworks displays listed in Table 1 
is that area of navigable waters within a 360 yard radius of the launch 
platform or launch site for each fireworks display, unless otherwise 
noted in Table 1 or modified in USCG First District Local Notice to 
Mariners at: http://www.navcen.uscg.gov/.
    (h) Fireworks barges used in these locations will also have a sign 
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. Shore sites used in these locations will display a 
sign labeled ``Fireworks--Stay Away'' with the same dimensions.

                     Table 1 of Sec.   165.T01-0688
------------------------------------------------------------------------
 
------------------------------------------------------------------------
1.0                                 New York Harbor
------------------------------------------------------------------------
1.1           Ocean Breeze Fishing     <bullet> Date: August 26, 2011.
               Pier, Staten Island     <bullet> Rain Date: August 27,
               Safety Zone.             2011.
                                       <bullet> Time: 8:30 p.m. to 10
                                        p.m.
                                       <bullet> Launch site: A barge
                                        located in approximate position
                                        40[deg]34'46.3'' N
                                        074[deg]04'02.0'' W (NAD 1983),
                                        approximately 1150 yards west of
                                        Hoffman Island. This Safety Zone
                                        is a 360-yard radius from the
                                        barge.
------------------------------------------------------------------------


                     Table 2 of Sec.   165.T01-0688
------------------------------------------------------------------------
 
------------------------------------------------------------------------
1.0                            Western Long Island Sound
------------------------------------------------------------------------
1.1           Swim Across America....  <bullet> Date: August 13, 2011.
                                       <bullet> Rain Date: NA.
                                       <bullet> Time: 6 a.m. to 11 a.m.
                                       <bullet> Location site:
                                        Participants will swim from
                                        Larchmont, New York to Glen
                                        Cove, New York.
                                       <bullet> This Safety Zone
                                        includes all waters within a 100-
                                        yard radius of each
                                        participating swimmer.
------------------------------------------------------------------------
2.0                                  Hudson River
------------------------------------------------------------------------
2.1           Newburgh Beacon Swim...  <bullet> Date: August 6, 2011.
                                       <bullet> Rain Date: August 7,
                                        2011.
                                       <bullet> Time: 1 p.m. to 3 p.m.
                                       <bullet> Rain Date Time: 2 p.m.
                                        to 4 p.m.
                                       <bullet> Location site:
                                        Participants will cross the
                                        Hudson River between Newburgh
                                        and Beacon, New York
                                        approximately 1300 yards south
                                        of the Newburgh-Beacon Bridge.
                                       <bullet> This Safety Zone
                                        includes all waters within a 100-
                                        yard radius of each
                                        participating swimmer.
------------------------------------------------------------------------
2.2           Rose Pitonof Swim......  <bullet> Date: August 13, 2011.
                                       <bullet> Rain Date: NA.
                                       <bullet> Time: 8 a.m. to 8 p.m.
                                       <bullet> Location: Participants
                                        will swim between Manhattan, New
                                        York and the shore of Coney
                                        Island, New York transiting
                                        through the Upper New York Bay,
                                        under the Verrazano-Narrows
                                        Bridge and south in the Lower
                                        New York Bay. The route
                                        direction is determined by the
                                        predicted tide state and
                                        direction of current on the
                                        scheduled day of the event.

[[Page 48722]]

 
                                       <bullet> This Safety Zone
                                        includes all waters within a 100-
                                        yard radius of each
                                        participating swimmer.
------------------------------------------------------------------------


    Dated: July 25, 2011.
G.P. Hitchen,
Captain, U.S. Coast Guard, Captain of the Port New York (Acting).
[FR Doc. 2011-20093 Filed 8-8-11; 8:45 am]
BILLING CODE 9110-04-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>