[Federal Register: July 8, 2004 (Volume 69, Number 130)]
[Rules and Regulations]
[Page 41196-41199]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy04-10]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-03-102]
RIN 1625-AA00
Safety Zones; Coast Guard Activities New York Fireworks Displays
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing five permanent safety zones
for fireworks displays located in Pierhead Channel, NJ; Lower New York
Bay; Raritan Bay; Long Island Sound; the Hudson River; and revise the
section title. This action is necessary to protect the life and
property of the maritime public from the hazards posed by these events.
Entry into or movement within these zones during the enforcement
periods is prohibited without approval of the Captain of the Port
(COTP), New York.
DATES: This rule is effective as of August 9, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket (CGD01-03-102) and are available for inspection or
copying at the Waterways Oversight Branch, room 203, Coast Guard
Activities New York, between 8 a.m. and 3 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander W. Morton,
Waterways Oversight Branch, Coast Guard Activities New York at (718)
354-4191.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On April 27, 2004, we published a notice of proposed rulemaking
(NPRM) entitled Safety Zones; Coast Guard Activities New York Fireworks
Displays in the Federal Register 69 FR 22753. We received no letters
commenting on the
[[Page 41197]]
proposed rule. No public hearing was requested, and none was held.
Background and Purpose
The Coast Guard is establishing five permanent safety zones that
will be enforced for fireworks displays occurring throughout the year
that are not held on an annual basis but are normally held in one of
these five locations. The five locations are in Pierhead Channel, NJ,
north of the Kill Van Kull Channel; Lower New York Bay, southeast of
Midland Beach; Raritan Bay east of Wolfes Pond Park; Long Island Sound,
east of Orchard Beach; and the Hudson River, east of Newburgh, NY. The
Coast Guard received 14 applications for fireworks displays in these
new areas between June and September 2003. There were no fireworks
displays at these sites in calendar year 2000. A temporary safety zone
was established for each display with limited notice for preparation by
the U.S. Coast Guard and limited opportunity for public comment.
Establishing five permanent safety zones by notice and comment
rulemaking provided the public the opportunity to comment on the zone
locations, size, and length of time the zones will be active. The Coast
Guard has not received notice of any impact to waterway traffic
resulting from the enforcement of the zones. Marine traffic will still
be able to pass safely around the safety zones because the zone
prohibits vessels from entering only the actual zone. Additionally,
vessels will not be precluded from mooring at or getting underway from
commercial or recreational piers in the vicinity of the safety zones.
This rule amends 33 CFR 165.168 by adding five permanent safety
zones to the 34 existing ones and revises the section's title to
identify the Coast Guard Captain of the Port zone where the safety
zones are located instead of listing all affected waterways.
We also removed the four figures in the regulation showing the
overview of the safety zone locations. These are available in the
``USCG Notices'' section online at: http://www.harborops.com. Mariners
are also able to plot these positions on their own navigation charts.
This rule, and the current effective safety zones in 33 CFR
165.168, are for fireworks displays using 12'' shells. We will enforce
a smaller safety zone for displays in these locations that use
fireworks shells smaller than 12''. However, the boundary will still be
located within the listed safety zone boundary of this regulation for
fireworks displays using shells smaller than 12''. The five safety
zones are:
Pierhead Channel, NJ Safety Zone
The safety zone includes all waters of Pierhead Channel and the
Kill Van Kull within a 360-yard radius of the fireworks barge in
approximate position 40[deg]39'18.8'' N, 074[deg]04'39.1'' W (NAD
1983), about 315 yards north of the Kill Van Kull Channel. The safety
zone prevents vessels from transiting a portion of Pierhead Channel and
the Kill Van Kull and is needed to protect the maritime public from the
hazards associated with a marine fireworks event. Marine traffic will
still be able to pass safely through the eastern 175 yards of the 460-
yard wide Pierhead Channel, and the southern 360 yards of the 400-yard
wide Kill Van Kull.
Midland Beach, Staten Island Safety Zone
The safety zone includes all waters of Lower New York Bay within a
500-yard radius of the fireworks barge in approximate position
40[deg]34'12.0'' N, 074[deg]04'29.6'' W (NAD 1983), about 800 yards
southeast of Midland Beach. The safety zone prevents vessels from
transiting a portion of Lower New York Bay and is needed to protect the
maritime public from the hazards associated with a marine fireworks
event. Marine traffic will still be able to pass safely around the
safety zone. The size of this zone is 500 yards to allow for the
vessels involved to be closer to shore if the Tides and Currents are
favorable the night of the display. The size of the zone to be enforced
during any fireworks display will be within 360-yards of the fireworks
barge. This 360-yard safety zone will be wholly contained within this
500-yard safety zone.
Wolfes Pond Park, Staten Island Safety Zone
The safety zone includes all waters of Raritan Bay within a 500
yard radius of the fireworks barge in approximate position
40[deg]30'52.1'' N 074[deg]10'58.8'' W (NAD 1983), about 540 yards east
of Wolfes Pond Park. The safety zone prevents vessels from transiting a
portion of Raritan Bay and is needed to protect the maritime public
from the hazards associated with a marine fireworks event. Marine
traffic will still be able to pass safely around the safety zone. The
size of this zone is 500 yards to allow for the vessels involved to be
closer to shore if the Tides and Currents are favorable the night of
the display. The size of the zone to be enforced during any fireworks
display will be within 360-yards of the fireworks barge. This 360-yard
safety zone will be wholly contained within this 500-yard safety zone.
Orchard Beach, The Bronx, Safety Zone
The safety zone includes all waters of Long Island Sound in an area
bound by the following points: 40[deg]51'43.5'' N 073[deg]47'36.3'' W;
thence to 40[deg]52'12.2'' N 073[deg]47'13.6'' W; thence to
40[deg]52'02.5'' N 073[deg]46'47.8'' W; thence to 40[deg]51'32.3'' N
073[deg]47'09.9'' W (NAD 1983), thence to the point of origin. The
safety zone prevents vessels from transiting a portion of Long Island
Sound and is needed to protect the maritime public from the hazards
associated with a marine fireworks event. Marine traffic will still be
able to pass safely around the safety zone. This safety zone is shaped
like a block to allow the sponsor the flexibility to use one or two
barges per display.
Newburgh, NY, Safety Zone
The safety zone includes all waters of the Hudson River within a
360-yard radius of the fireworks barge in approximate position
41[deg]30'01.2'' N 073[deg]59'42.5'' W (NAD 1983), about 930 yards east
of Newburgh, NY. The safety zone prevents vessels from transiting a
portion of the Hudson River and is needed to protect the maritime
public from the hazards associated with a marine fireworks event.
Marine traffic will still be able to pass safely around the safety
zone.
The size of these safety zones was determined using National Fire
Protection Association and New York City Fire Department standards for
12 inch mortars fired from a barge, combined with the Coast Guard's
knowledge of tide and current conditions in the area. Barge locations
and mortar sizes were adjusted to try and ensure the safety zone
locations do not interfere with any known marinas or piers.
The Coast Guard does not know the actual dates that these safety
zones will be enforced at this time. Coast Guard Activities New York
will give notice of the enforcement of each safety zone by all
appropriate means to provide the widest publicity among the affected
segments of the public. This will include publication in the Local
Notice to Mariners, electronic mail distribution, and on the Internet
at http://www.harborops.com. Marine information and facsimile
broadcasts may also be made for these events, beginning 24 to 48 hours
before the event is scheduled to begin, to notify the public. The Coast
Guard expects that the notice of the enforcement of each permanent
safety zone in this
[[Page 41198]]
rulemaking will normally be made between thirty and twenty one days
before the zone is actually enforced. Fireworks barges used in the
locations stated in this rulemaking will also have a sign on the port
and starboard side of the barge labeled ``FIREWORKS--STAY AWAY''. This
will provide on-scene notice that the safety zone is or will be
enforced on that day. This sign will consist of 10'' high by 1.5'' wide
red lettering on a white background. There will also be a Coast Guard
patrol vessel on scene 30 minutes before the display is scheduled to
start until 15 minutes after its completion to enforce the safety zone.
The enforcement period for these safety zones is from 6 p.m. to 1
a.m. However, vessels may enter, remain in, or transit through these
safety zones during this time frame if authorized by the Captain of the
Port New York, or designated Coast Guard patrol personnel on scene, as
provided for in 33 CFR 165.23. Generally, blanket permission to enter,
remain in, or transit through these safety zones will be given except
for the 45-minute period that a Coast Guard patrol vessel is present.
Discussion of Comments and Changes
The Coast Guard received no letters commenting on the proposed
rulemaking. No changes were made to this rulemaking.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, 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. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security (DHS).
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary.
This finding is based on the short amount of time that vessels will
be restricted from the zones, and the small zone sizes positioned in
low vessel traffic areas. Vessels may still transit through all Traffic
Lanes to, and from, the Port of New York/New Jersey. Vessels may also
still transit through Pierhead Channel, the Kill Van Kull, Lower New
York Bay, Raritan Bay, western Long Island Sound, and the Hudson River
during these events. Vessels will not be precluded from getting
underway, or mooring at, any piers or marinas currently located in the
vicinity of the safety zones. Advance notifications will also be made
to the local maritime community by the Local Notice to Mariners,
electronic mail distribution, and in the ``USCG Notices'' section on
the Internet at http://www.harborops.com. Marine information and
facsimile broadcasts may also be made to notify the public.
Additionally, the Coast Guard anticipates that these safety zones will
only be enforced 18-20 times per year.
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 might
be small entities: The owners or operators of vessels intending to
transit or anchor in a portion of Pierhead Channel, the Kill Van Kull,
Lower New York Bay, Raritan Bay, western Long Island Sound, and the
Hudson River, during the times these zones are enforced.
These safety zones will not have a significant economic impact on a
substantial number of small entities for the following reasons: Vessel
traffic can pass safely around the safety zones. Vessels will not be
precluded from getting underway, or mooring at, any piers or marinas
currently located in the vicinity of the safety zones. Generally,
blanket permission to enter, remain in, or transit through these safety
zones will be given except for the 45-minute period that a Coast Guard
patrol vessel is present. Before the effective period, we will issue
maritime advisories widely available to users of the Port of New York/
New Jersey by Local Notice to Mariners, electronic mail distribution,
and in the ``USCG Notices'' section on the Internet at http://www.harborops.com.
Marine information and facsimile broadcasts may also
be made.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule will 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 will 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 offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. However,
we received no requests for assistance from small entities.
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).
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 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.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and
[[Page 41199]]
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 might
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 Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g) of the Instruction, from further
environmental documentation.
A ``Categorical Exclusion Determination'' is available in the
docket for inspection or copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
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; 50
U.S.C. 191; 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. In Sec. 165.168--
0
a. Revise the section heading;
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b. Revise paragraph (a) introductory text and add paragraphs (a)(10),
(a)(11) and (a)(12);
0
c. Revise paragraph (b) introductory text and add paragraph (b)(11);
0
d. Revise paragraph (c) introductory text;
0
e. Revise paragraph (d) introductory text, and add paragraph (d)(12);
0
f. In paragraph (f), remove the word ``Effective'' from the paragraph
heading and add in its place the word ``Enforcement'' and in the first
sentence of the paragraph remove the words ``is effective'' and add in
their place the words ``will be enforced''; and
0
g. Remove figures 1 through 4 at the end of the section.
The revisions, removals, and additions read as follows:
Sec. 165.168 Safety Zones; Coast Guard Activities New York Fireworks
Displays.
(a) New York Harbor. The following areas are safety zones:
* * * * *
(10) Pierhead Channel, NJ Safety Zone: All waters of Pierhead
Channel and the Kill Van Kull within a 360-yard radius of the fireworks
barge in approximate position 40[deg]39'18.8'' N 074[deg]04'39.1'' W
(NAD 1983), approximately 315 yards north of the Kill Van Kull Channel.
(11) Midland Beach, Staten Island Safety Zone: All waters of Lower
New York Bay within a 500-yard radius of the fireworks barge in
approximate position 40[deg]34'12.0'' N 074[deg]04'29.6'' W (NAD 1983),
approximately 800 yards southeast of Midland Beach.
(12) Wolfes Pond Park, Staten Island Safety Zone: All waters of
Raritan Bay within a 500-yard radius of the fireworks barge in
approximate position 40[deg]30'52.1'' N 074[deg]10'58.8'' W (NAD 1983),
approximately 540 yards east of Wolfes Pond Park.
(b) Western Long Island Sound. The following areas are safety
zones:
* * * * *
(11) Orchard Beach, The Bronx, Safety Zone: All waters of Long
Island Sound in an area bound by the following points: 40[deg]51'43.5''
N 073[deg]47'36.3'' W; thence to 40[deg]52'12.2'' N 073[deg]47'13.6''
W; thence to 40[deg]52'02.5'' N 073[deg]46'47.8'' W; thence to
40[deg]51'32.3'' N 073[deg]47'09.9'' W (NAD 1983), thence to the point
of origin.
(c) East River. The following areas are safety zones:
* * * * *
(d) Hudson River. The following areas are safety zones:
* * * * *
(12) Newburgh, NY, Safety Zone: All waters of the Hudson River
within a 360-yard radius of the fireworks barge in approximate position
41[deg]30'01.2'' N 073[deg]59'42.5'' W (NAD 1983), approximately 930
yards east of Newburgh, NY.
* * * * *
Dated: June 29, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-15559 Filed 7-7-04; 8:45 am]
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