2010-16262. Special Local Regulations; Macy's Fourth of July Fireworks Spectator Vessels Viewing Areas, Hudson River, New York, NY

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary special local regulation on the Hudson River in the vicinity of New York, NY, for the Macy's July 4th fireworks display. This temporary special local regulation is intended to restrict certain vessels from designated portions of the Hudson River during the fireworks event. This regulation is necessary to provide for the safety of life on navigable waters by controlling vessel movement and establishing public viewing areas for the fireworks event.

DATES:

This rule is effective from 7 p.m. on July 4, 2010 until 11:30 p.m. on July 5, 2010.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0114 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0114 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, Sector New York Waterways Management Division, Marine Events Branch. Coast Guard; telephone [phone], 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 sufficient information regarding the event was not received in time to publish a NPRM followed by a final rule before the effective date, thus making the publication of a NPRM impractical. A delay or cancellation of the event in order to allow for a notice and comment period is contrary to the public interest in having this event occur on July 4 as scheduled.

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. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during the event and immediate action is necessary to prevent possible loss of life or property. Also, a delay or cancellation of the fireworks event in order to allow for publication in the Federal Register is contrary to the public's interest in having this event occur as scheduled.

Basis and Purpose

This temporary special local regulation is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks display. Based on the inherent hazards associated with fireworks, the Captain of the Port New York has determined that fireworks launches proximate to watercraft pose significant risk to public safety and property. The combination of increased numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, and debris falling into the water has the potential to result in serious injuries or fatalities. This special local regulation temporarily establishes a regulated area to restrict vessel movement around the location of the launch platforms to reduce the risk associated with the launch of fireworks.

Discussion of Rule

MACY's is sponsoring their 34th Annual Macy's Fourth of July Fireworks on the waters of the Hudson River. This temporary special local regulation is necessary to ensure the safety of spectators and vessels from hazards associated with the fireworks display.

The fireworks display will occur from 9:20 p.m. until 9:50 p.m. In order to coordinate the safe movement of vessels within the area and to ensure that the area is clear of unauthorized persons and vessels before and immediately after the fireworks launch, this rule is effective and will be enforced from 7 p.m. until 10:30 p.m. on July 4, 2010.

If the event is cancelled due to inclement weather, then this special local regulation will be effective from 7 p.m. until 11:30 p.m. on July 5, 2010.

The special local regulation will encompass all waters of the Hudson River south of a line drawn from Pier 11A, Weehawken, NJ, to West 70th Street, New York, NY, and north of a line drawn from the northwest corner of Pier 40, New York, NY to a point at position 40°43′51.2″ N, 074°01′41.5″ W, Jersey City Pier, NJ. All geographic coordinates are North American Datum of 1983 (NAD 83).

The Captain of the Port New York will establish five limited access areas within the boundaries of the special local regulation. Access to these areas will be restricted to vessels of a certain size. The five limited access areas are: (1) A “buffer zone” around the fireworks launch barges, designated area ALPHA, limited to all vessels tending the barges; (2) a “spectator area” designated BRAVO in which access is limited to vessels less than 20 meters in length (65.6ft); (3) “spectator area” designated CHARLIE in which access is limited to vessels greater than 20 meters in length (65.6ft); (4) “spectator area” designated DELTA in which access is limited to vessels greater than 20 meters in length (65.6ft); and (5) a “spectator area” designated ECHO in which access is limited to vessels less than 20 meters in length (65.6ft).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port New York or the designated on-scene representative. Entry into, transiting, or anchoring within the regulated area is prohibited unless authorized by the Captain of the Port New York, or the designated on-scene representative. The Captain of the Port New York or the on-scene representative may be contacted via VHF Channel 16.

Public notifications will be made prior to the event via the Local Notice to Mariners, and marine information broadcasts.

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.

Regulatory Planning and Review

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.

This determination is based on the limited time that vessels will be restricted from the fireworks display area. The temporary safety zone will only be in effect for approximately four hours during the evening hours. The Coast Guard expects insignificant adverse impact to mariners from the zone's activation as the event has been extensively advertised in the public. Also, affected mariners may request authorization from the Captain of the Port New York or the designated on-scene representative to transit the zone.

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 Hudson River, in the vicinity of New York City, NY from 7 p.m. to 10:30 p.m. on July 4th, 2010.

This temporary special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only four hours on a single day during the late evening for this fireworks event. Although the special local regulation will apply to the entire width of the river, traffic will be allowed to pass through the area with the permission of the Captain of the Port New York or the designated on-scene representative. Before the effective period, we will issue maritime advisories widely available to users of the waterway.

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 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 (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.

Taking of Private Property

This rule will not cause 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)(h), of the Instruction. This rule involves the promulgation of a special local regulation regulating vessel traffic on a portion of the lower Hudson River 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 100

• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Waterways

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS

1. The authority citation for part 100 continues to read as follows:

Authority: 33 U.S.C. 1233.

2. Add § 100.35T0144 to read as follows:

§ 100.35T0144

Special Local Regulation; Macy's July Fourth Fireworks Spectator Vessel Viewing Area, Hudson River, New York, NY.

(a) Regulated Area. The regulated area includes all waters of the Hudson River within the following points (NAD 83): all navigable waters of the Hudson River bounded by a line drawn east from approximate position 40°46′35.43″ N, 074°00′7.53″ W in New Jersey, to a point in approximate position 40°46′16.98″ N, 073°59′52.34″ W in New York, thence south along the Manhattan shoreline to approximate position 40°44′48.98″ N, 074°00′41.06″ W, then west to approximate position 40°44′55.91″ N, 074°01′24.94″ W, then north along the New Jersey shoreline and back to the point of origin.

(1) Area ALPHA: all navigable waters of the Hudson River bounded by a line drawn east from approximate position 40°46′35.43″ N, 074°00′7.53″ W in New Jersey, to a point in approximate position 40°46′16.98″ N, 073°59′52.34″ W in New York, thence south along the Manhattan shoreline to approximate position 40°44′48.98″ N, 074°00′41.06″ W, then west to approximate position 40°44′55.91″ N, 074°01′24.94″ W; then north along the New Jersey shoreline and back to the point of origin. (NAD 83).

(2) Area BRAVO: All navigable waters of the Hudson River bounded by a line drawn east from approximate position 40°46′35.43″ N, 074°00′37.53″ W in New Jersey, across the Hudson River to a point in approximate position 40°46′16.98″ N, 073°59′52.34″ W in New York, thence north along the Manhattan shoreline to approximate position 40°46′31.38″ N, 073°59′ 37.46″ W, then west to approximate position 40°46′47.71″ N, 074°00′19.73″ W, then south along the New Jersey shoreline and back to the point of origin.(NAD 83).

(3) Area CHARLIE: All navigable waters of the Hudson River bounded by a line drawn east from a point in New Jersey in approximate position 40°46′47.71″ N, 074°00′19.73″ W in New Jersey to approximate position 40°46′31.38″ N, 073°59′37.46″ W in New York, thence north along the Manhattan shoreline to approximate position 40°46′47.60″ N, 073°59′22.26″ W, then west to a point in New Jersey in approximate position 40°47′03.39″ N, 074° 00′00.19″ W, then south along the New Jersey shoreline back to the point of origin.(NAD 83).

(4) Area DELTA: All navigable waters of the Hudson River bounded by a line drawn east from approximate position 40°44′ 55.56″ N, 074°01′ 21.18″ W in New Jersey, to a point in New York in approximate position 40°44′ 48.98″ N, 074°00′41.06″ W, then south along the Manhattan shoreline to approximate position 40°44′21.84″ N, 074°00′41.78″ N, then west to a point in approximate position 40°44′23.91″ N, 074°01′29.05″ W in Hoboken, NJ, then north along the New Jersey shoreline back to the point of origin.(NAD 83).

(5) Area ECHO: All navigable waters of the Hudson River bounded by a line drawn east from a point in New Jersey in approximate position 40°44′23.91″ N, 074°01′29.05″ W; to approximate position 40°44′21.84″ N, 074°00′41.78″ W; then south along the Manhattan shoreline to approximate position 40°43′49.63″ N, 074°00′49.65″ W; then west to a point in 40°43′50.60″ N, 074°01′51.00″ W in Hoboken New Jersey, then north along the New Jersey shoreline back to the point of origin.(NAD 83).

(b) Special local regulations. (1) In accordance with the general regulations is § 100.35 of this part, entry into, transiting, or anchoring within the regulated areas is prohibited unless the vessel is in an area designated for vessels of that size or entry is otherwise authorized by the Captain of the Port New York, or the designated on-scene representative.

(2) Vessels are authorized by the Captain of the Port New York to enter areas of this special location regulation in accordance with the following restrictions:

(i) Area ALPHA is restricted to vessels engaged in conducting the fireworks display and tending to the launch barges.

(ii) Area BRAVO access is limited to vessels greater than 20 meters (65.6ft) in length.

(iii) Area CHARLIE access is limited to vessels less than 20 meters (65.6ft) in length.

(iv) Area DELTA access is limited to vessels greater than 20 meters (65.6ft) in length.

(v) Area ECHO access is limited to vessels less than 20 meters (65.6ft) in length.

(3) All persons and vessels in the regulated areas shall comply with the instructions of the Coast Guard Captain of the Port New York or the designated on-scene representative. On-scene representatives comprise commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

(c) Enforcement Period: This section will be enforced from 7 p.m. to 10:30 p.m. on July 4, 2010, and if the fireworks display is postponed, it will be effective from 7 p.m. until 11:30 p.m. on July 5, 2010.

Dated: June 14, 2010.

R.R. O'Brien, Jr.,

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