E8-15045. Safety Zones; Fireworks Displays Within the Sector Delaware Bay Captain of the Port Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard will establish several safety zones for fireworks displays at various locations within the geographic boundary of the Sector Delaware Bay Captain of the Port Zone. This action is necessary to protect the life and property of the maritime public from the hazards posed by fireworks displays. Entry into or movement within these proposed zones during the enforcement periods is prohibited without approval of the Captain of the Port.

DATES:

This rule is effective from July 3, 2008 through September 6, 2008.

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 USCG-2008-0590 and are available online at www.regulations.gov. This material is also available for inspection or copying at two locations: 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, and Coast Guard Sector Delaware Bay, One Washington Avenue, Philadelphia, Pennsylvania 19147 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call MST2 Jan-Michael Myers, Waterways Management Division, at [phone]. 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, publishing an NPRM would be impracticable and contrary to public interest since immediate action is needed to minimize potential danger to the public during this safety zone. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction and on scene Coast Guard and local law enforcement assets will also provide notice to mariners.

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 the effective date would be contrary to the public interest, because immediate action is needed to ensure the safety of the event. However, notifications will be made to users of the effected areas via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers. Safety zones are enforced during fireworks displays in order to prevent personal injury to mariners and damage to vessel traffic as a result of burning debris in the secured fallout area. Coast Guard assets and the on scene patrol commander serve to protect mariners on the navigable waterways during these permitted marine events.

Background and Purpose

Each year organizations in the Sector Delaware Bay Captain of the Port Zone sponsor fireworks displays in the same general location and time period. Each event uses a barge or an on-shore site near the shoreline as the fireworks launch platform. A safety zone is used to control vessel movement within a specified distance surrounding the launch platforms to ensure the safety of persons and property. Coast Guard personnel on scene could allow persons within the safety zone if conditions permit. Seven locations require the establishment of safety zones. These locations are the following: 1. North Atlantic Ocean, Bethany Beach, DE; 2. North Atlantic Ocean, Avalon, NJ; 3. Barnegat Bay, Barnegat Township, NJ; 4. North Atlantic Ocean, Cape May, NJ; 5. Great Egg Harbor Inlet, Margate City, NJ; 6. North Atlantic Ocean, Ocean City, NJ; 7. Metedeconk River, Brick Township, NJ.

The Coast Guard Captain of the Port would give notice of the enforcement of each safety zone by all appropriate mean to provide the widest publicity among affected segments of the public. This would include publication in the Local Notice to Mariners and Marine Information Broadcasts. 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.

This rule is to provide for the safety of life on navigable waters during the events and to give the marine community adequate notice of the specific locations and times for each event.

Discussion of Rule

The Coast Guard revises the regulations by adding the following seven temporary safety zone locations. All coordinates listed for the following safety zones reference Datum NAD 1983.

North Atlantic Ocean, Bethany Beach, DE, Safety Zone

The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks launch platform in approximate position latitude 38°32′08″ N, longitude 075°03′15″ W, on the shoreline at Bethany Beach, DE.

North Atlantic Ocean, Avalon, NJ, Safety Zone

The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 39°05′31″ N, longitude 074°43′00″ W, in the vicinity of the shoreline at Avalon, NJ.

Barnegat Bay, Barnegat Township, NJ, Safety Zone

The waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position latitude 39°44′50″ N, longitude 074°11′21″ W, approximately 70 yards north of Conklin Island, NJ.

North Atlantic Ocean, Cape May, NJ, Safety Zone

The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 38°55′36″ N, longitude 074°55′26″ W, immediately adjacent to the shoreline at Cape May, NJ.

Great Egg Harbor Inlet, Margate City, NJ, Safety Zone

All waters within a 500 yard radius of the fireworks barge in approximate position latitude 39°19′33″ N, longitude 074°31′28″ W, on the Intracoastal Waterway near Margate City, NJ.

North Atlantic Ocean, Ocean City, NJ, Safety Zone

The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 39°16′22″ N, longitude 074°33′54″ W, in the vicinity of the shoreline at Ocean City, NJ.

Metedeconk River, Brick Township, NJ, Safety Zone

The waters of the Metedeconk River within a 300 yard radius of the fireworks launch platform in approximate position latitude 40°03′24″ N, longitude 074°06′42″ W, on the shoreline at Brick Township, NJ.

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. Although this regulation restricts vessel traffic from transiting a small segments of coastal waters and the intracoastal waterway, the effect of this regulation will not be significant due to the limited durations that the regulated areas will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts and area newspapers so mariners can adjust their plans accordingly.

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 operator of vessels intending to transit or anchor in the safety zones 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: The enforcement periods will be short in duration and in many of the zones vessels can transit safely around the safety zones. Generally, blanket permission to enter, remain in, or transit through these safety zones will be given except during the period that the Coast Guard patrol vessel is present. Before the enforcement period, we will issue maritime advisories widely.

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 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 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 Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, 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, under the Instruction, 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, an environmental analysis checklist and a categorical exclusion determination are not required for this rule because the included events are all of very short duration lasting only 2 hours or less each.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures, and 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; 50 U.S.C 191,195; 33 CFR 1.05-1, 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. Add temporary 165.T05-001, to read as follows:

§ 165.T05-001

North Atlantic Ocean, Bethany Beach, DE, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks launch platform in approximate location latitude 38°32′08″ N, longitude 075°03′15″ W, on the shoreline of Bethany Beach, DE.

(b) Effective Period. The effective period for this event is on July 4, 2008 from 9 p.m. to 9:30 p.m.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

3. Add temporary § 165.T05-002, to read as follows:

§ 165.T05-002

North Atlantic Ocean, Avalon, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate location latitude 39°05′31″ N, longitude 074°43′00″ W, in the vicinity of the shoreline at Avalon, NJ.

(b) Effective Period. The effective period for this event is on July 5, 2008 from 8 p.m. to 10 p.m.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

4. Add temporary § 165.T05-003, to read as follows:

§ 165.T05-003

Barnegat Bay, Barnegat Township, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position latitude 39°44′50″ N, longitude 074°11′21″ W, approximately 70 yards north of Conklin Island, NJ.

(b) Effective Period. The effective period for this event is on July 4, 2008 from 9:15 p.m. to 9:45 p.m.; and on September 6, 2008 from 9 p.m. to 9:30 p.m.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

5. Add temporary § 165.T05-004, to read as follows:

§ 165.T05-004

North Atlantic Ocean, Cape May, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 38°55′36″ N, longitude 074°55′26″ W, immediately adjacent to the shoreline at Cape May, NJ.

(b) Effective Period. The effective period for this event is on July 4, 2008 from 9 p.m. to 9:30 p.m.; with a rain date of July 5, 2008.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

6. Add temporary § 165.T05-005, to read as follows:

§ 165.T05-005

Great Egg Harbor Inlet, Margate City, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: All waters within a 500 yard radius of the fireworks barge in approximate position latitude 39°19′33″ N, longitude 074°31′28″ W, on the Intracoastal Waterway near Margate City, NJ.

(b) Effective Period. The effective period for this event is on August 24, 2008 from 8:30 p.m. to 10:30 p.m.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

7. Add temporary § 165.T05-006, to read as follows:

§ 165.T05-006

North Atlantic Ocean, Ocean City, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of the North Atlantic Ocean within a 500 yard radius of the fireworks barge in approximate position latitude 39°16′22″ N, longitude 074°33′54″ W, in the vicinity of the shoreline at Ocean City, NJ.

(b) Effective Period. The effective period for this event is on July 4, 2008 from 9 p.m. to 9:15 p.m.; with a rain date of July 5, 2008.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

8. Add temporary § 165.T05-007, to read as follows:

§ 165.T05-007

Metedeconk River, Brick Township, NJ, Safety Zone.

(a) Location. The following area is a temporary safety zone: The waters of the Metedeconk River within a 300 yard radius of the fireworks launch platform in approximate position latitude 40°03′24″ N, longitude 074°06′42″ W, on the shoreline at Brick Township, NJ.

(b) Effective Period. The effective periods for this event are on July 3, July 17, July 31, August 14, and August 28, 2008 from 6 p.m. to 10 p.m.; with rain dates of July 10, July 24, August 7, August 21, and September 4, 2008, respectively.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person or vessel may enter or navigate within this safety zone unless authorized to do so by the Coast Guard or designated representatives. Any person or vessel authorized to enter the safety zone must operate in strict conformance with any directions given by the Coast Guard or designated representative and leave the safety zone immediately if the Coast Guard or designated representative so orders.

(2) All Coast Guard assets enforcing this safety zone can be contacted on VHF marine band radio, channels 13 and 16. The Captain of the Port can be contacted at [phone].

(3) The Captain of the Port will notify the public of any changes in the status of this safety zone by Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHZ).

(d) Definitions. The Captain of the Port means the Commanding Officer of Sector Delaware Bay or any Coast Guard commissioned warrant or petty officer who has been authorized by the Captain of the Port to act on his behalf.

Dated: June 19, 2008.

D.L. Scott,

Captain, U.S. Coast Guard, Captain of the Port Sector Delaware Bay.