Rule2023-17514
Safety Zones; Recurring Fireworks Displays and Swim Events in Coast Guard Sector New York Zone
Primary source
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Published
August 16, 2023
Effective
August 16, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is revising its regulations for permanent safety zones in the Coast Guard Sector New York Captain of the Port Zone for recurring fireworks displays and swim events. This revision will update the list of events, alter the means of notification, and clarify the function of these safety zone regulations. The establishment of the safety zones is necessary to protect event participants, waterway users, and vessels from the potential hazards associated with these recurring organized water events. When subject to enforcement, no person is authorized to access the safety zones without permission from the Captain of the Port (COTP) or the COTP's designated representative.
Full Text
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<title>Federal Register, Volume 88 Issue 157 (Wednesday, August 16, 2023)</title>
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[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Rules and Regulations]
[Pages 55572-55576]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17514]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0075]
RIN 1625-AA00
Safety Zones; Recurring Fireworks Displays and Swim Events in
Coast Guard Sector New York Zone
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is revising its regulations for permanent
safety zones in the Coast Guard Sector New York Captain of the Port
Zone for recurring fireworks displays and swim events. This revision
will update the list of events, alter the means of notification, and
clarify the function of these safety zone regulations. The
establishment of the safety zones is necessary to protect event
participants, waterway users, and vessels from the potential hazards
associated with these recurring organized water events. When subject to
enforcement, no person is authorized to access the safety zones without
permission from the Captain of the Port (COTP) or the COTP's designated
representative.
DATES: This rule is effective August 16, 2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2023-0075 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 MSTC Stacy Stevenson, Waterways Management Division, U.S.
Coast Guard; telephone 718-354-4197, email <a href="/cdn-cgi/l/email-protection#672357564a342a254a340204293e4a300613021510061e142712140400490a0e0b"><span class="__cf_email__" data-cfemail="5410646579071916790731371a0d79033520312623352d2714212737337a393d38">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port New York
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
The Captain of the Port New York (COTP) is establishing, amending,
and updating annual and recurring swim events and fireworks safety
zones codified in 33 CFR 165.160 in Tables 1 and 2, for the COTP zone.
On May 4, 2023, the Coast Guard published a notice of proposed
rulemaking (NPRM) titled ``Safety Zones; Recurring Fireworks Displays
and Swim Events in Coast Guard Sector New York Zone'' (88 FR 28444).
There we stated why we issued the NPRM and invited comments on our
proposed regulatory action related to this rule. During the comment
period that ended June 5, 2023, we received two comments.
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. Six firework displays are
scheduled to occur in June. Delaying the effective date of this rule
would be impracticable because the absence of a safety zone around
barge-based fireworks displays within the COTP
[[Page 55573]]
zone poses a significant risk to public safety. Therefore, it is
important to enforce the safety zones without delay to mitigate
potential hazards to mariners and ensure effective management of vessel
traffic around these displays.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The revision of Table 1 and Table 2 to Sec. 165.160 amends and
updates recurring safety zones in the COTP zone. This rule will
prohibit entry into those safety zones without permission of COTP to
protect spectators, mariners, and other persons and property from
potential hazards presented during the firework display or swim event
associated with the safety zone.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received two comments on our NPRM published May
4, 2023 (88 FR 28444). Both comments received were in favor of the rule
overall.
One commenter asked about the implementation of other safety
precautions if the safety zone failed or was breached. These
precautions include, but are not limited to, regular inspections,
emergency response protocols, signage, and ongoing monitoring and
evaluation of the safety zones' effectiveness. Additionally, many
fireworks displays are scheduled to occur within areas monitored by the
Vessel Traffic Center, who will ensure adequate notice and
predictability in the New York and New Jersey waters through
coordination of vessel movements and dissemination information.
The second commenter, also in favor of the safety zones around
fireworks displays, recommended that the fireworks take place in an
area that prevents debris from entering the water and that a cleanup
plan be in place. While the Coast Guard takes its role as an
environmental steward seriously, the purpose of this safety zone is to
manage traffic around the displays and ensure safety. This rulemaking
does not contemplate the environmental concerns relative to the
fireworks themselves, but of the impact on the environment by the
safety zone. Therefore, this rule aligns with the principles of NEPA
and underscores the commitment to mitigate adverse environmental
effects while managing vessel traffic effectively. Further, the Coast
Guard is not serving as the permitting agency for these events, they
are coordinated by other government agencies.
This rule updates Table 1 to Sec. 165.160 by consolidating all
fireworks displays launched from a barge location to one row and
removing other firework displays. This rule also completely replaces
Table 2 to Sec. 165.160 with new swim events and their respective
locations. Only event sponsors, designated participants of swim events,
and official patrol vessels will be allowed to enter safety zones
without needing to seek permission. Spectators and other vessels not
registered as swim event participants cannot enter the safety zones
without the permission of the COTP or the Designated Representative.
Finally, the rule reorganizes and updates the text of Sec. 165.160 to
be more understandable to the reader, as described in the NPRM.
There are no changes to the regulatory text of this rule from the
proposed rule in the NPRM.
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 section 3(f) of Executive Order 12866, as
amended by Executive Order 14094 (Modernizing Regulatory Review).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB).
This regulatory action determination is based on the ability of
other waterway users to safely transit around the safety zones in many
cases, and the size and duration of the safety zones will impact a
small, designated area of the waterway for a relatively short period of
time. Moreover, the Coast Guard will notify mariners of the enforcement
via marine broadcasts, local notice to mariners, local news media,
distribution in leaflet form, by an on-scene oral notice, or signage as
appropriate. The rule will also allow vessels to seek permission to
enter the zone if necessary.
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
[[Page 55574]]
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 prevents vessels
from transiting areas specifically designated as safety zones during
the periods they are subject to enforcement. 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. 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.3.
0
2. Revise Sec. 165.160 to read as follows:
Sec. 165.160 Safety Zones; Recuring Fireworks Displays and Swim
Events Held in Coast Guard Sector New York Zone.
(a) Regulations. The general regulations in subpart C of this part
as well as the following regulations apply to the safety zones
associated with the recurring fireworks displays and swim events listed
in tables 1 or 2 to this section, respectively.
(1) Under the general safety zone regulations in subpart C of this
part, no person may enter the safety zone described in table 1 or 2 of
this section unless authorized by the Captain of the Port (COTP) or the
COTP's Designated Representative.
(2) To seek permission to enter the designated safety zone, contact
the COTP or the COTP's Designated Representative via VHF-FM Marine
Channel 16, or by contacting the Coast Guard Sector New York command
center at 718-354-4356.
(3) Event organizers must ensure that fireworks barges have signage
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.
(4) Shore sites used in these locations will display a sign labeled
``Fireworks--Stay Away'' with the same dimensions.
(b) Definitions. As used in this section:
Designated representative means any Coast Guard commissioned,
warrant or petty officer of the U.S. Coast Guard who has been
designated by the Captain of the Port 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.
Official Patrol Vessels means any Coast Guard, Coast Guard
Auxiliary, state, or local law enforcement vessels assigned as an on-
scene representative or approved by the COTP.
Spectators means all persons and vessels not registered with the
event sponsor as participants or official patrol vessels.
(c) Enforcement periods. (1) Safety zones for fireworks-display
events listed in Table 1 of this section will be subject to enforcement
for approximately one hour between 6 p.m. to 1 a.m. when a barge with a
``Fireworks--Stay Away'' sign on the port and starboard side is on-
scene or a ``Fireworks--Stay Away'' sign is posted in a location listed
in Table 1 to Sec. 165.160.
(2) The regulations in this section will be subject to enforcement
for the duration of each event on or about the dates indicated in Table
2 of this section.
(3) For events in Tables 1 and 2 that do not have a date or
location listed, or if the event occurs on a date or location other
than the one that is listed, then exact dates and times of the
enforcement period will be announced via marine broadcast, local notice
to mariners, distribution in leaflet form, local news media, or by an
on-scene oral notice as appropriate.
(4) Notifications of enforcement times for events listed in Table 1
and 2, including any changes to the enforcement dates or times listed
in this section, may be made via marine broadcasts, local notice to
mariners, local news media, distribution in leaflet form, or by an on-
scene oral notice and signage.
(d) Location. If the specific location of a safety zone for
fireworks displays is not listed in Table 1, an announcement will be
made by marine broadcast, local notice to mariners, distribution in
leaflet form, local news media, or by an on-scene oral notice as
appropriate. The specific locations of swim event safety zones are
listed in Table 2. Any modification to the location of safety zones
described in this section will be listed in USCG First District Local
Notice to Mariners at: <a href="http://www.navcen.uscg.gov/">http://www.navcen.uscg.gov/</a>.
[[Page 55575]]
Table 1 to Sec. 165.160--Fireworks Displays
------------------------------------------------------------------------
1.0 Event Location \1\
------------------------------------------------------------------------
1.1 Twin Island, Long Island Sound Launch Site: A land shoot located on
Safety Zone. the east end of Orchard Beach, NY,
in approximate position
40[deg]52'10'' N, 073[deg]47'07''
W. This Safety Zone includes
navigable waters within a 200-yard
radius from the launch site.
1.2 Arthur Kill, Elizabeth, NJ Launch Site: A land shoot located in
Safety Zone. Elizabeth, NJ, in approximate
position 40[deg]38'50'' N,
074[deg]10'58'' W. This Safety Zone
includes navigable waters within a
150-yard radius from the launch
site.
1.3 Wards Island, East River, NY Launch Site: A land shoot located on
Safety Zone. Wards Island in approximate
position 40[deg]46'57'' N
073[deg]55'28'' W, approximately
330 yards north of the Robert F.
Kennedy Bridge (Triborough Bridge).
This Safety Zone includes navigable
waters within a 200-yard radius
from the launch site.
1.4 Barge Based Fireworks Displays All waters within the Sector New
York COTP Zone within an area up to
a 500-yard radius of a firework
barge or barges used during the
storage, preparation, and launching
of fireworks.
------------------------------------------------------------------------
\1\ All coordinates listed in Table 1 to Sec. 165.01-165.160 reference
Datum NAD 1983.
Table 2 to Sec. 165.160--Swim Events
------------------------------------------------------------------------
1.0 Event Date/location \1\
------------------------------------------------------------------------
1.1 Hudson River, Ulster, NY, Swim Date: The first weekend after the
4th of July.
Location: The safety zone includes
all navigable waters of the Hudson
River in the vicinity of Ulster
Landing, bound by the following
coordinates:
42[deg]00'03.7'' N,
073[deg]56'43.1'' W, thence to
41[deg]59'52.5'' N,
073[deg]56'34.2'' W, to
42[deg]00'15.1'' N,
073[deg]56'25.2'' W, to
42[deg]00'05.4'' N,
073[deg]56'41.9'' W, thence along
the shoreline to the point of
origin.
1.2 Hudson River, Nyack to Date: 2nd weekend in September.
Kingsland Point Swim. Location: The safety zone includes
all navigable waters of the Hudson
River between Nyack, NJ and the
Tarrytown Lighthouse bound by the
following coordinates:
41[deg]05'10.7'' N, 073[deg]55'03''
W, thence to
41[deg]05'02'' N, 073[deg]52'25'' W,
to
41[deg]05'19'' N, 073[deg]52'22'' W,
to
41[deg]05'25'' N, 073[deg]54'51'' W
thence along the shoreline to the
point of origin.
1.3 Navy Seal Swim, New York Date: One Saturday or Sunday in
Harbor. August.
Location: The safety zone includes
all navigable waters bound by the
following coordinates:
40[deg]41'26'' N, 74[deg]03'17'' W,
thence to
40[deg]41'02'' N, 74[deg]02'25'' W,
to
40[deg]41'40'' N, 74[deg]02'00'' W,
to
40[deg]42'25'' N, 74[deg]01'08'' W,
to
40[deg]42'28'' N, 74[deg]01'07'' W,
to
40[deg]41'57'' N, 74[deg]02'07'' W,
to
40[deg]41'40'' N, 74[deg]02'30'' W,
to
40[deg]41'24'' N, 74[deg]02'27'' W,
to
40[deg]41'12'' N, 74[deg]02'38'' W,
to
40[deg]41'29'' N, 74[deg]03'15'' W,
thence back to the point of origin.
1.4 Hudson River, Newburgh to Date: One Saturday or Sunday in
Beacon Swim. July.
Location: The safety zone includes
all navigable waters of the Hudson
River between Newburgh and Beacon,
NY bound by the following
coordinates:
41[deg]30'24.2'' N, 074[deg]0'17.4''
W, thence to
41[deg]30'27.8'' N,
073[deg]59'16.8'' W, to
41[deg]30'11.6'' N,
073[deg]59'19.9'' W, to
41[deg]30'03.4'' N, 074[deg]0'17.2''
W, thence north along the shoreline
to the point of origin.
1.5 Long Island Sound, Horseshoe Date: 4th weekend in July and 2nd
Harbor Swim. weekend in August.
Location: The safety zone includes
all navigable waters of the Long
Island Sound bound by the following
coordinates:
40[deg]55'32'' N, 73[deg]44'37'' W,
thence southeast to
40[deg]55'28'' N, 73[deg]44'14'' W,
to
40[deg]55'01'' N, 73[deg]43'59'' W,
to
40[deg]54'01'' N, 73[deg]44'17'' W,
to
40[deg]54'48'' N, 73[deg]45'10'' W,
thence along the shoreline back to
the point of origin.
1.6 New York Harbor, Liberty Date: One weekend in July.
Island to Morris Canal Swim. Location: The safety zone includes
all navigable waters of the New
York Harbor bound by the following
coordinates:
40[deg]41'27'' N, 74[deg]02'25'' W,
thence to
40[deg]41'22'' N, 74[deg]02'13'' W,
to
40[deg]41'36'' N, 74[deg]02'04'' W,
to
40[deg]42'39'' N, 74[deg]01'42'' W,
to
40[deg]42'42'' N, 74[deg]02'05'' W,
to
40[deg]42'31'' N, 74[deg]01'55'' W,
thence back to the point of origin.
------------------------------------------------------------------------
\1\ All coordinates listed in Table 2 to Sec. 165.01-165.160 reference
Datum NAD 1983.
[[Page 55576]]
Dated: June 24, 2023.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2023-17514 Filed 8-15-23; 8:45 am]
BILLING CODE 9110-04-P
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