[Federal Register Volume 87, Number 93 (Friday, May 13, 2022)]
[Rules and Regulations]
[Pages 29226-29228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10345]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0131]
RIN 1625-AA00


Safety Zones; Recurring Marine Events and Fireworks Displays 
Within the Fifth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending its safety zones established for 
recurring marine events and fireworks displays that take place within 
the Fifth Coast Guard District area of responsibility. This action is 
necessary to address minor revisions to the listing of events that 
informs the public of regularly scheduled fireworks displays that 
require additional safety measures provided by regulations. Through 
this final rule, the current list of recurring marine events requiring 
safety zones will be updated with two additional events that take place 
in the Sector Virginia area of responsibility. This regulation 
prohibits persons and vessels from being in the safety zones unless 
authorized by the Captain of the Port Virginia or a designated 
representative.

DATES: This rule is effective June 13, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type Docket 
Number USCG-2022-0131 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 LCDR Ashley Holm, Chief, Waterways Management Division, 
Sector Virginia, U.S. Coast Guard; telephone 757-668-5580 email 
<a href="/cdn-cgi/l/email-protection#a5e4d6cdc9c0dc8be08bedcac9c8e5d0d6c6c28bc8ccc9"><span class="__cf_email__" data-cfemail="c382b0abafa6baed86ed8bacafae83b6b0a0a4edaeaaaf">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATCOM Patrol Commander
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard regularly updates the regulations for recurring 
safety zones within the Fifth Coast Guard District at 33 CFR 165.506, 
and its respective tables. These recurring safety zones are for 
fireworks displays that take place either on or over the navigable 
waters of the Fifth Coast Guard District as defined at 33 CFR 3.25. 
These regulations were last amended October 15, 2021 (86 FR 57358). 
Since then, two recurring marine events within the Fifth Coast Guard 
District have changed in a way that require establishment of a safety 
zone for protection of life, property and the environment. Hazards 
associated with these events include potential falling debris and 
possible fire, explosion, projectile, and burn hazards. The purpose of 
this rule is to ensure the safety of persons, vessels, and the 
navigable waters within close proximity to fireworks displays before, 
during, and after the scheduled events. In response, on March 20, 2022, 
the Coast Guard published a notice of proposed rulemaking (NPRM) titled 
Safety Zones; Recurring Marine Events and Fireworks Displays Within the 
Fifth Coast Guard District (87 FR 15347). There we stated why we issued 
the NPRM, and invited comments on our proposed regulatory action 
related to these fireworks displays. During the comment period that 
ended April 19, 2022, we received one comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Virginia 
(COTP) has determined that potential hazards associated with the 
fireworks events present a safety concern for anyone within the safety 
zones. The purpose of this rule is to ensure safety of vessels and the 
navigable waters in the safety zone before, during, and after the 
scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published on 
March 20, 2022. The commenter was interested in understanding more 
about how these safety zones were developed, particularly how the Coast 
Guard determined how big each zone needs to be, where they are located, 
whether the Coast Guard regulates the types of fireworks used in the 
event, and environmental analysis. The Coast Guard creates safety zones 
under the authority in 46 U.S.C. 70034. The Coast Guard carefully 
determines the appropriate size of the safety zone using the shell 
diameter as a referential factor and uses the National Vessel 
Inspection Circular (NVIC) No. 7-02, Marine Safety at Fireworks 
Displays, and the National Fire Protection Agency (NFPA) 1123, Code for 
Fireworks Display, to determine applicable size of the awarded safety 
zone using the established criteria. In general, fireworks shows are 
common occurences both on land and on the waterway. The Coast Guard 
reviews each individual proposed waterborne event on a case-by-case 
basis. Marine event permit applications are submitted to the Coast 
Guard by sponsors of proposed marine events. They include a good faith 
estimate of spectator craft that are expected to be drawn to the event 
based on the ``triggering event'' itself. In each of the two safety 
zones proposed, the fireworks shows or ``triggering events'' are 
expected to draw a significant number of spectator craft based on 
historical precedent, general public interest and the best projections 
for attendance communicated to the Coast Guard via the marine event 
application process. Part of the marine event application process is 
the National Environmental Protection Act (NEPA) consideration the 
Coast Guard completes for all federal actions taken. The issuance of a 
marine event permit constitutes a ``federal action'', thus requiring 
the NEPA review to be completed. The NEPA review considers the proposed 
event location and evaluates the potential impact to environmentally 
sensitive areas that may need to be addressed and mitigated. The 
issuance of a rule creating the safety zone is a seperate federal 
action. The fireworks events in this regulation are legacy events that 
were inadvertently removed due to administrative error when the Coast 
Guard revised 33 CFR 165.506, and its respective tables, in 2021. This 
regulatory action was taken to re-establish the two safety zones rather 
than establish them as new occurences.
    There are no changes in the regulatory text of this rule from the 
proposed rule in the NPRM.
    The first safety zone would be enforced on the third or fourth 
Saturday in July of each year, beginning in July 2022, between 9:30 
p.m. and 10 p.m. and cover all waters of John H. Kerr Reservoir within 
a 400 yard radius of approximate position latitude 36[deg]37'51''

[[Page 29227]]

N, longitude 078[deg]32'50'' W, located near the center span of the 
State Route 15 Highway Bridge.
    The second safety zone would be enforced on the evening of the 
first or second Saturday or Sunday in June of each year, beginning in 
June 2022, between 9:30 p.m. and 10 p.m. and cover all waters of the 
Elizabeth River within a 500-yard radius of approximate position of the 
fireworks barge at latitude 36[deg]50'41'' N, longitude 076[deg]17'47'' 
W, located near Town Point Park in Norfolk, VA.
    Dates and times are subject to change in accordance with existing 
regulatory text found in 33 CFR 165.506(c).
    The duration of the zones are intended to ensure the safety of 
vessels and these navigable waters before, during, and after each 
scheduled fireworks display. No vessel or person would be permitted to 
enter the safety zones without obtaining permission from the COTP or a 
designated representative. The regulatory text we are proposing appears 
at the end of this document.

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 Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the short amount 
of time that vessels will be restricted from certain parts of the 
waterway and the small size of these areas that are usually positioned 
away from high vessel traffic zones. Generally vessels would not be 
precluded from getting underway, or mooring at any piers or marinas 
currently located in the vicinity of the regulated areas. Advance 
notifications will also be made to the local maritime community by 
issuance of Local Notice to Mariners, Broadcast Notice to Mariners via 
VHF-FM marine channel 16, and Marine Safety Information or Security 
Bulletins so mariners can adjust their plans accordingly. Notifications 
to the public for most events will typically be made by local 
newspapers, radio and TV stations. The Coast Guard anticipates that 
these safety zones will only be enforced for limited durations, less 
than 24 hours, occurring on specific dates throughout the year.

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 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 2 
recurring safety zones lasting less than 1 hour each that will prohibit 
entry within. 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.

[[Page 29228]]

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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 1.2.


0
2. In Sec.  165.506, amend table 3 to paragraph (h)(3) by adding 
entries 12 and 13 to read as follows:


Sec.  165.506  Safety Zones; Fireworks Displays in the Fifth Coast 
Guard District.

* * * * *
    (h) * * *
    (3) * * *

                       Table 3 to Paragraph (h)(3)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                              * * * * * * *
12........  July--3rd or 4th   John H. Kerr       All waters of John H.
             Saturday.          Reservoir,         Kerr Reservoir within
                                Clarksville, VA;   a 400-yard radius of
                                Safety Zone.       approximate position
                                                   latitude
                                                   36[deg]37'51'' N,
                                                   longitude
                                                   078[deg]32'50'' W,
                                                   located near the
                                                   center span of the
                                                   State Route 15
                                                   Highway Bridge.
13........  June--first or     Elizabeth River,   All waters of the
             second Saturday    Town Point         Elizabeth River, Town
             or Sunday.         Reach, Norfolk,    Point Reach within a
                                VA; Safety Zone.   500-yard radius of
                                                   approximate position
                                                   of the fireworks
                                                   barge latitude
                                                   36[deg]50'41'' N,
                                                   longitude
                                                   076[deg]17'47'' W, in
                                                   vicinity of Town
                                                   Point Park in
                                                   Norfolk, VA.
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* * * * *

    Dated: May 9, 2022.
L.M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-10345 Filed 5-12-22; 8:45 am]
BILLING CODE 9110-04-P


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