2011-14327. Safety Zone; New York Water Taxi 10th Anniversary Fireworks

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary Final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone in the Captain of the Port (COTP) Zone New York on the navigable waters of the Upper New York Bay in the vicinity of Red Hook, New York for a fireworks display. This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. Persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the temporary safety zone unless authorized by the COTP New York or the designated on-scene representative.

DATES:

This rule is effective from 8:30 p.m. until 10 p.m. on June 21, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0222 and are available online by going to http://www.regulations.gov,, inserting USCG-2011-0222 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 LTJG Eunice James, Coast Guard Sector New York Waterways Management Division; 718-354-4163, e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 the Coast Guard did not receive information regarding the dates and scope of the event in time to publish a NPRM followed by a final rule before the effective date. The sponsor was not aware of the requirements for submitting an application for a marine event 135 days in advance, resulting in a late notification. The sponsor is now aware of this requirement for all future events. Nevertheless, the sponsor is unable to reschedule this event due to other activities being held in conjunction with the fireworks display. The safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels operating near the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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 date specified above in order to provide for the safety of the public including spectators and vessels operating in the area near the fireworks display.

Background and Purpose

The fireworks event was planned by a private party to celebrate the 10th Anniversary of New York Water Taxi. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes. This event poses significant risk to participants, spectators and the maritime public because of hazardous conditions associated with a fireworks display. This temporary safety zone is necessary to ensure the safety of these participants, spectators and vessels.

Discussion of Rule

This rule establishes a temporary safety zone on the waters of the Upper New York Bay. The temporary safety zone will encompass all waters of the Upper New York Bay in the vicinity of Red Hook, Brooklyn, NY, within a 180 yards radius around position 40°40′52″ N, 074°01′39″ W (NAD 83) approximately 400 yards south of Governors Island. All persons and vessels shall comply with the instructions of the COTP New York or the designated representative. Entry into, transiting, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative. The COTP New York or the designated representative may be reached on VFH Channel 16.

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 this temporary safety zone will be of short duration and designed to minimize the impact to vessel traffic on navigable waters. This safety zone will only be enforced for 90 minutes. Furthermore, vessels may be authorized to transit the zone 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 Upper New York Bay in the vicinity of Governors Island and Red Hook, NY. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic can safely transit around the zone. Before the effective period, we will issue maritime advisories widely available to users of the waterway. This rule will be in effect for only 90 minutes.

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 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 affect 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 that 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 a temporary safety zone on a portion of the Upper New York Bay during the launching of fireworks. 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

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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T01-0222 to read as follows:

§ 165.T01-0222

Safety Zone; New York Water Taxi 10th Anniversary Fireworks, Upper New York Bay, Red Hook, NY.

(a) Location. The following area is a temporary safety zone: A 180 yard radius around position 40°40′52″ N, 074°01′39″ W in the vicinity of Governors Island and Red Hook, NY on the Upper NY Bay.

(b) Enforcement period. This section will be enforced from 8:30 p.m. until 10 p.m. on June 21, 2011.

(c) Definitions. “Designated on-scene representative” means any commissioned, warrant, and petty officer of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, state, and Federal law enforcement vessels who have been authorized to act on behalf of the COTP New York.

(d) Regulations.

(1) Entry into, transit through, mooring or anchoring within this safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative.

(2) Persons desiring to operate within the safety zone established in this section may contact the COTP New York at telephone number 718-354-4398 or via on-scene patrol personnel on VHF channel 16 to seek permission to do so. If permission is granted, all persons and vessels must still comply with the instructions of the COTP New York or the designated on-scene representative.

Dated: May 23, 2011.

L.L. Fagan,

Captain, U.S. Coast Guard, Captain of the Port New York.