[Federal Register: April 27, 2004 (Volume 69, Number 81)]
[Proposed Rules]
[Page 22753-22756]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap04-16]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish 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 proposed zones during the effective
periods is prohibited without approval of the Captain of the Port
(COTP), New York.
DATES: Comments and related material must reach the Coast Guard on or
before May 27, 2004.
ADDRESSES: You may mail comments and related material to Waterways
Oversight Branch (CGD01-03-102), Coast Guard Activities New York, 212
Coast Guard Drive, room 203, Staten Island, NY 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 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:
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 (CGD01-03-
102), indicate the specific section of this document to which each
comment applies, and give the reason for each
[[Page 22754]]
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.
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 separate notice in the Federal Register.
Background and Purpose
The Coast Guard proposes to establish 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 would provide the public the opportunity to comment on the
proposed 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 would still be able to pass safely around the proposed safety
zones because the zone prohibits vessels from entering only the actual
zone. Additionally, vessels would not be precluded from mooring at or
getting underway from commercial or recreational piers in the vicinity
of the proposed safety zones.
This proposed rule would revise 33 CFR 165.168 by adding five
permanent safety zones to the 34 existing ones and would revise 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 propose to remove the four figures in the regulation
showing the overview of the safety zone locations. These will be made
available in the ``USCG Notices'' section online at: http: //
http://www.harborops.com. Mariners are also able to plot these positions on
their own navigation charts.
This proposed rule and the current 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''.
Discussion of Proposed Rule
Pierhead Channel, NJ Safety Zone
The proposed 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[min]18.8[sec] N,
074[deg]04[min]39.1[sec] W (NAD 1983), about 315 yards north of the
Kill Van Kull Channel. The proposed 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 would 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 proposed 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[min]12.0[sec] N, 074[deg]04[min]29.6[sec] W (NAD 1983), about
800 yards southeast of Midland Beach. The proposed 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 would still be able to pass
safely around the safety zone. The size of this proposed zone would be
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 would be within
360 yards of the fireworks barge. This 360-yard safety zone would be
wholly contained within this proposed 500-yard safety zone.
Wolfes Pond Park, Staten Island Safety Zone
The proposed safety zone includes all waters of Raritan Bay within
a 500 yard radius of the fireworks barge in approximate position
40[deg]30[min]52.1[sec] N 074[deg]10[min]58.8[sec] W (NAD 1983), about
540 yards east of Wolfes Pond Park. The proposed safety zone would
prevent 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 would still be able to pass
safely around the safety zone. The size of this proposed zone would be
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 would be within
360-yards of the fireworks barge. This 360-yard safety zone would be
wholly contained within this proposed 500-yard safety zone.
Orchard Beach, The Bronx, Safety Zone
The proposed safety zone includes all waters of Long Island Sound
in an area bound by the following points: 40[deg]51[min]43.5[sec] N
073[deg]47[min]36.3[sec] W; thence to 40[deg]52[min]12.2[sec] N
073[deg]47[min]13.6[sec] W; thence to 40[deg]52[min]02.5[sec] N
073[deg]46[min]47.8[sec] W; thence to 40[deg]51[min]32.3[sec] N
073[deg]47[min]09.9[sec] W (NAD 1983), thence to the point of origin.
The proposed 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 would
still be able to pass safely around the safety zone. This safety zone
is shaped to allow the sponsor the flexibility to use one or two barges
per display.
Newburgh, NY, Safety Zone
The proposed safety zone includes all waters of the Hudson River
within a 360-yard radius of the fireworks barge in approximate position
41[deg]30[min]01.2[sec] N 073[deg]59[min]42.5[sec] W (NAD 1983), about
930 yards east of Newburgh, NY. The proposed 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 would still be able to pass safely
around the safety zone.
The proposed 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.
Proposed barge
[[Page 22755]]
locations and mortar sizes were adjusted to try and ensure the proposed
safety zone locations would 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 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 effective period for these proposed 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.
This rule is being proposed to provide for the safety of life on
navigable waters during the event and to give the marine community the
opportunity to comment on the proposed zone locations, size, and length
of time the zone will be active.
Regulatory Evaluation
This proposed 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 proposed 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
would 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 would not be precluded from
getting underway, or mooring at, any piers or marinas currently located
in the vicinity of the proposed safety zones. Advance notifications
would also be made to the local maritime community by 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 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 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.
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 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 proposed zones are
enforced.
These proposed safety zones would not have a significant economic
impact on a substantial number of small entities for the following
reasons: Vessel traffic could pass safely around the safety zones.
Vessels would not be precluded from getting underway, or mooring at,
any piers or marinas currently located in the vicinity of the proposed
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 would issue maritime advisories widely available
to users of the Port of New York/New Jersey by 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.
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 Commander W. Morton,
Waterways Oversight Branch, Coast Guard Activities New York at (718)
354-4191.
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
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 proposed 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
[[Page 22756]]
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 proposed rule would
not result in such an expenditure, we do discuss the effects of this
rule elsewhere in this preamble.
Taking of Private Property
This proposed rule would not effect 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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.
Environment
We have analyzed this proposed 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. This rule fits the category selected from
paragraph (34)(g) as it would establish five safety zones.
A draft ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES. Comments on this section will be
considered before we make the final decision on whether the rule should
be categorically excluded from further environmental review.
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. 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.
2. In Sec. 165.168--
a. Revise the section heading;
b. Revise paragraph (a) introductory text, and add paragraphs
(a)(10), (a)(11) and (a)(12);
c. Revise paragraph (b) introductory text, and add paragraph
(b)(11);
d. Revise paragraph (c) introductory text;
e. Revise paragraph (d) introductory text, and add paragraph
(d)(12); and
f. Remove figures 1 through 4 at the end of the section.
g. 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''.
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: April 13, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-9554 Filed 4-26-04; 8:45 am]
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