
[Federal Register: September 29, 2010 (Volume 75, Number 188)]
[Rules and Regulations]               
[Page 59966-59968]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se10-5]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0138]
RIN 1625-AA00

 
Safety Zone; New York Air Show at Jones Beach State Park, 
Wantagh, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone for 
the annual New York Air Show at Jones Beach State Park in Wantagh, New 
York. This safety zone is necessary to provide for the safety of 
navigation and protection of the maritime public from the hazards 
inherent with an air show which consists of aircraft performing 
aerobatic maneuvers over the Atlantic Ocean off of Jones Beach State 
Park.

DATES: This rule is effective October 29, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0138 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-0138 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call or e-mail: Petty Officer Joseph Graun, Prevention Department, USCG 
Sector Long Island Sound at 203-468-4459, e-mail: 
Joseph.L.Graun@uscg.mil. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On April 21, 2010, we published a notice of proposed rulemaking 
(NPRM) entitled: Safety Zone; New York Air Show at Jones Beach State 
Park, Atlantic Ocean off of Jones Beach, Wantagh, NY, in the Federal 
Register (75 FR 20802). We received no comments or requests for a 
public meeting on the proposed rule.

Basis and Purpose

    The Air Show consists of aircraft performing aerobatics in close 
proximity to other aircraft over a specified area of the Atlantic Ocean 
off of Jones Beach State Park. The safety zone will provide for the 
safety of the maritime community and spectators viewing the Air Show 
from the water should an accident, such as a collision of aircraft, 
occur during the Show.
    Entry into this zone is prohibited unless authorized by the Captain 
of the Port Long Island Sound or by Designated On-scene Patrol 
Personnel. Any violation of the safety zone described herein is 
punishable by, among other things, civil and criminal penalties, in rem 
liability against the offending vessel, and the initiation of 
suspension or revocation proceedings against Coast Guard-issued 
merchant mariner credentials.

Background

    The New York State Office of Parks, Recreation and Historic 
Preservation sponsors an annual air show at Jones Beach State Park 
during the week before Memorial Day. In the past the Coast Guard 
established temporary regulations for this event every year and was not 
previously published in the CFR. The Notice of Proposed Rulemaking 
process provided the opportunity for public comments to be voiced and 
eliminated the unnecessary burden of establishing temporary rules every 
year.

Discussion of Comments and Changes

    During the Notice of Proposed Rulemaking process, the sponsor of 
the event informed the Coast Guard that the dates of the enforcement 
period needed to be changed. The original proposed dates for the safety 
zone were from May 24, 2010 until May 30, 2010 allowing enforcement of 
the safety zone during the air show practice sessions. There will no 
longer be a practice session; therefore, the safety zone will only be 
needed during the main event on the Thursday through Sunday before 
Memorial Day in May.

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.

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 may affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit or anchor in those portions of the Atlantic Ocean off of Jones 
Beach State Park, Jones Beach, New York covered by the safety zone.
    This regulation may have some impact on the public, but the 
potential impact will be minimized for the following reasons: The zone 
would only be enforced for a temporary period each day over a four day 
period; and vessels may transit in all areas around the zone at all 
times.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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-

[[Page 59967]]

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 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)(g), of 
the Instruction. This rule involves establishing safety zones and 
therefore falls within the categorical exclusion noted above. 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.

0
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: 33 U.S.C. 1226 and 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 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.


0
2. Add Sec.  165.159 to read as follows:


Sec.  165.159  Safety Zone: New York Air Show at Jones Beach State 
Park, Wantagh, NY.

    (a) Location. The following waters of the Atlantic Ocean off of 
Jones Beach State Park, Wantagh, NY are designated a safety zone: 
Beginning at a point on land located in Jones Beach State Park at 
approximate position 40[deg]35'06'' N, 073[deg]32'37'' W, then running 
east along the shoreline of Jones Beach State Park to approximate 
position 40[deg]35'49'' N, 073[deg]28'47'' W; then running south to a 
position in the Atlantic Ocean off of Jones Beach at approximate 
position 40[deg]35'05'' N, 073[deg]28'34'' W; then running west to 
approximate position 40[deg]34'23'' N, 073[deg]32'23'' W; then running 
north to the point of origin. All coordinates are North American Datum 
1983.
    (b) Definitions. The following definition applies to this section: 
Designated On-scene Patrol Personnel, means any commissioned, warrant 
and petty officers of the U.S. Coast Guard operating Coast Guard 
vessels who have been authorized to act on the behalf of the Captain of 
the Port Long Island Sound.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into or movement within this zone is 
prohibited unless authorized by the Captain of the Port Long Island 
Sound or designated on-scene patrol personnel.
    (2) All persons and vessels must comply with the Coast Guard 
Captain of the Port or designated on-scene patrol personnel. On-scene 
Coast Guard patrol personnel include commissioned,

[[Page 59968]]

warrant, and petty officers of the Coast Guard on board Coast Guard, 
Coast Guard Auxiliary, and local, State, and Federal law enforcement 
vessels.
    (3) Upon being hailed by siren, radio, flashing light or other 
means from a U.S. Coast Guard vessel or other vessel with on-scene 
patrol personnel aboard, the operator of the vessel shall proceed as 
directed.
    (4) Persons and vessels desiring to enter the regulated area may 
request permission to enter from the designated on scene patrol 
personnel by contacting them on VHF-16 or by a request to the Captain 
of the Port Long Island Sound via phone at (203) 468-4401.
    (d) Enforcement Period. This rule will be enforced annually on the 
Thursday through Sunday before Memorial Day in May. Notification of the 
enforcement of the safety zone will be made via marine broadcasts and 
local notice to mariners.

    Dated: May 24, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound.
[FR Doc. 2010-24236 Filed 9-28-10; 8:45 am]
BILLING CODE 9110-04-P

