AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard is proposing to revise 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. Our proposed revision would update the list of events, alter the means of notification, and clarify the function of these safety zone regulations. The establishment of the proposed 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 proposed safety zones without permission from the Captain of the Port (COTP) or the COTP's designated representative. We invite your comments on this proposed rulemaking.

DATES:

Comments and related material must be received by the Coast Guard on or before June 5, 2023.

ADDRESSES:

You may submit comments identified by docket number USCG–2023–0075 using the Federal Decision-Making Portal at https://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this proposed rulemaking contact MSTC Stacy Stevenson, Waterways Management Division, U.S. Coast Guard by telephone at 718–354–4197 or email at D01-SMB-SecNY-Waterways@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port New York Zone

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

§ Section

U.S.C. United States Code

II. Background, Purpose, and Legal Basis

Swim events and fireworks displays are held on an annual recurring basis on the navigable waters within the Coast Guard Sector New York Captain of the Port Zone. The Coast Guard has established safety zones for some of these annually recurring events to ensure the protection of the maritime public and event participants from associated potential hazards.

The current list of annual and recurring safety zones in the Captain of the Port New York Zone (COTP) appears in 33 CFR 165.160 in Tables 1 and 2, for fireworks displays and swim events, respectively. Those tables were established by a final rule entitled “Special Local Regulations and Safety Zones; Recurring Events in Captain of the Port New York Zone” published in the Federal Register on November 9, 2011 (76 FR 69613).

The Coast Guard proposes to amend and update the safety zone regulations in 33 CFR 165.160 in Tables 1 and 2 to include the most up-to-date list of recurring safety zones for events held on navigable waters within the COTP. These events include fireworks displays and swim events that require a limited access area to restrict vessel traffic for safety purposes. The current lists in Tables 1 and 2 need to be amended to provide new information on existing safety zones, to add new safety zones, and to remove safety zones that are no longer required. The proposed rule would also consolidate all barge-based fireworks displays in Table 1 to section 165.160 to one row encompassing the COTP in its entirety, and replace separate entries for events with fixed locations.

This proposed rule would also change the parameters of the safety zone area for swim events in Table 2 to 33 CFR 165.160 from all navigable waters within a 100-yard radius of each participating swimmer, as listed in the initial rule (76 FR 69613), to geographic coordinates that encompass the entire swim course. The COTP has determined that it is in the interest of safety for participants of swim events and other waterway users to establish a safety zone around the pre-determined course vice the individual swimmer to better address and provide notice of potential hazards.

Lastly, this rulemaking amends section 165.160 to reorganize the text to a more understandable format. The phone number of the Sector New York Command Center is updated. The method to announce the enforcement details of the safety zones in Tables 1 and 2 to 33 CFR 165.160 is proposed to be changed from Notice of Enforcement in the Federal Register to be by marine broadcasts, local notice to mariners, local news media, distribution in leaflet form, or by an on-scene oral notice.

The purpose of this rulemaking is to ensure the safety of vessels, event participants, and the navigable waters before, during, and after a scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.

The Coast Guard encourages the public to participate in this proposed rulemaking through the comment process so that any necessary changes can be identified and implemented in a timely and efficient manner. The Coast Guard will address all public comments accordingly, whether through response, additional revision to the regulation, or otherwise.

III. Discussion of Proposed Rule

The revision of Table 1 and Table 2 to section 165.160 would establish recurring safety zones in the COTP that will prohibit entry into those safety zones without permission of the Captain of the Port 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.

The safety zones in Table 1 to section 165.160 for fireworks displays will be subject to enforcement for approximately 1 hour between 6 p.m. until 1 a.m. when either—

• 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 on land adjacent to the shoreline, in a location listed in the Table 1 to section 165.160.

This proposed rule would update Table 1 section 165.160 to consolidate all fireworks displays launched from a barge location to one consolidated row, removing entries 2.1–2.5, 2.8–2.15, 3.1–3.5, 3.7–3.10, 3.12–3.14, 4.1–4.3, 5.1–5.15, 6.1, and 7.1–7.3. This entry is proposed as follows:

This proposed rule also removes the following safety zones from the existing Table 1 to section 165.160: entry 2.6, Coney Island Safety Zone, entry 3.11, Orchard Beach, The Bronx Safety Zone, entry 3.14 Echo Bay, Western Long Island Sound Safety Zone, and entry 4.4 Seaport, East River Safety Zone.

We are proposing to replace Table 1 to section 165.160 with the following Table 1:

This rule would also completely replace Table 2 to section 165.160 with new swim events and their respective locations. The area for these safety zones is also more specifically defined through coordinates to encompass the event course as opposed to a zone within a 100-yard radius of each participating swimmer as it was previously defined in Table 2 to section 165.160. Using coordinates to clearly identify the area in and around the pre-determined courses that the participating swimmers will stay within increases their safety and the safety of others using the waterway by providing sufficient notice of enforced areas.

This proposed regulation would prevent vessels from transiting areas specifically designated as safety zones during the periods they are subject to enforcement. This is to ensure the protection of the maritime public and event participants from the hazards associated with the listed organized water events. Only event sponsors, designated participants of swim events, and official patrol vessels would be allowed to enter safety zones without needing to seek permission. Spectators and other vessels not registered as swim event participants may not enter the safety zones without the permission of the COTP or the Designated Representative.

The proposed rule also reorganizes the text of section 165.160 be more understandable to the reader. The phone number of the Sector New York Command Center is updated to 718–354–4356. Lastly, the prior rule making established that the exact dates and times of the enforcement period for the safety zones in Tables 1 and 2 to 165.160 would be through a Notice of Enforcement in the Federal Register . This proposed rule updates the method to provide notice regarding the enforcement location, time, date, and any alterations to be conducted via marine broadcasts, local notice to mariners, local news media, distribution in leaflet form, or by an on-scene oral notice.

The regulatory text we are proposing appears at the end of this document.

IV. Regulatory Analyses

We developed this proposed 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 as well as 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM 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 would impact a small, designated area of the waterway for a relatively short period of time. Moreover, the Coast Guard would 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 would 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 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.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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.

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. If the proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

This proposed rule would 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

F. Environment

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule is for the establishment of safety zones located in the immediate vicinity of various marine events and that will each be enforced for a relatively short duration. Normally such actions are 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 preliminary 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. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

We view public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG–2023–0075 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

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 is proposing 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: 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.

2. Revise § 165.160 to read as follows: