[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Rules and Regulations]
[Pages 41189-41193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13995]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0317]
RIN 1625-AA00


Safety Zones; Northern California and Lake Tahoe Area Annual 
Fireworks Events, San Francisco, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending and establishing several permanent 
safety zones in the Captain of the Port San Francisco zone. This action 
is necessary to provide for the safety of life on the navigable waters 
of the San Francisco Bay, Carquinez Strait, Mare Island Strait, 
Sacramento River, Lake Tahoe, and Monterey Bay during annual fireworks 
displays. This regulation prohibits persons and vessels from entering 
the safety zones unless authorized by the Captain of the Port San 
Francisco or a designated representative.

DATES: This rule is effective August 10, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0317 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Jennae Cotton, Waterways Management, U.S. 
Coast Guard; telephone 415-399-3585, email SFWaterways@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port San Francisco
DHS Department of Homeland Security
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    Fireworks displays in 33 CFR 165.1191 are held annually on the 
navigable waters within the Captain of the Port San Francisco (COTP) 
zone. After conducting a review of the fireworks displays listed in 33 
CFR 165.1191, the specifications for eight of the events listed in the 
table no longer accurately reflect the actual event parameters, and 
three annual fireworks displays are not listed in the table. In 
response, on March 17, 2020, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled ``Safety Zones; Northern California 
and Lake Tahoe Area Annual Fireworks Events, San Francisco, CA'' (85 FR 
15082). There, we stated why we issued the NPRM, and invited comments 
on our proposed regulatory action related to these fireworks displays. 
During the comment period that ended May 18, 2020, we received one 
comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that 
potential hazards associated with the fireworks used in these annual 
displays would be a safety concern for any unauthorized vessels or 
persons within the safety zones during the respective fireworks 
displays. The purpose of this rule is to ensure safety on the navigable 
waters within the safety zones for the fireworks displays before, 
during, and after the scheduled events.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published March 
17, 2020. The comment requested an explanation for the variance between 
safety zone sizes for different fireworks displays and inquired about 
whether or not current COVID-19 public health orders were taken into 
effect when assessing the costs and benefits of this regulation.
    Each fireworks display has different setup and display 
characteristics, designated by the fireworks display sponsor. To 
determine the size of the safety zone used for each fireworks display, 
the Coast Guard follows guidelines established by the National Fire 
Protection Association in relation to the largest shell size used for 
each fireworks display. In addition, safety zone characteristics also 
vary among displays depending on the pyrotechnics launch site. 
Fireworks displays that are

[[Page 41190]]

launched from a barge require an initial 100-foot safety zone beginning 
when the barge is being loaded with pyrotechnics. In the event of a 
barge-based fireworks display, the safety zone will increase from 100 
feet to full size upon commencement of the fireworks display. The 
safety zones in this regulation have been thoroughly reviewed to ensure 
that proper distance is maintained from the fireworks launch site for 
spectator and boating safety.
    The Coast Guard is amending this regulation to provide for public 
safety from the hazards associated with fireworks displays. While this 
regulation amendment is occurring during the response to COVID-19, 
these changes are necessary based on historical event details. The 
Coast Guard is aware that public health officials currently impose 
safety requirements intended to mitigate the spread of the coronavirus. 
However, a Coast Guard safety zone is not the correct tool to use to 
address social distancing, because a safety zone restricts movement 
into and within a defined zone, but does not control the movement of 
people or vessels outside of that zone. Changing the sizes of these 
safety zones would not have any effect on spectators' proximity to one 
another outside of the safety zone. Additionally, this regulation 
amends and adds safety zone details for annual fireworks displays 
continuing indefinitely, so the details must be accurate for these 
displays under normal circumstances, otherwise this regulation will not 
be useful in years to come. If the event sponsor or local government 
decides not to hold the event, the safety zones would not be enforced. 
Overall, the Coast Guard has assessed the costs and benefits associated 
with this rule, and does not find that the current response to COVID-19 
changes that assessment.
    There are three changes to the regulatory text of this rule from 
the proposed rule in the NPRM that are unrelated to the concerns raised 
by the commenter. The changes to the proposed text are made to item 22 
``Monte Foundation Fireworks,'' item 25 ``Sacramento New Years Eve 
Fireworks,'' and item 31 ``Benicia Fourth of July Fireworks,'' and they 
are discussed later in this section with the other changes to item 22, 
item 25, and item 31.
    The COTP is amending Table 1 to Sec.  165.1191. Eight fireworks 
displays will be amended, and three fireworks displays will be added.
    The fireworks events being amended are listed numerically in Table 
1 of this section as item 7, ``San Francisco Independence Day 
Fireworks,'' item 8, ``Fourth of July Fireworks, Berkeley Marina,'' 
item 9, ``Fourth of July Fireworks, City of Richmond,'' item 19, ``Red, 
White, and Tahoe Blue Fireworks, Incline Village, NV,'' item 22, 
``Monte Foundation Fireworks,'' item 24, ``San Francisco New Years Eve 
Fireworks,'' item 25, ``Sacramento New Years Eve Fireworks,'' and item 
27, ``Feast of Lanterns Fireworks.''
    The display locations for items 7, 8, 9, 25, and 27 no longer 
accurately reflect the display locations for the events, so this rule 
inserts updated location descriptions into the table.
    The display names of items 19, 24, and 25 will be updated. Item 19, 
``Red, White, and Tahoe Blue Fireworks, Incline Village, NV,'' will be 
renamed ``Incline Village Independence Day Fireworks.'' Item 24, ``San 
Francisco New Years Eve Fireworks,'' and item 25, ``Sacramento New 
Years Eve Fireworks,'' will be updated to include an apostrophe in 
``New Year's Eve.''
    The display dates listed in items 22, 24, 25, and 27 do not 
accurately reflect the display dates for the fireworks displays, so 
this rule will update them as follows. Item 22, ``Monte Foundation 
Fireworks,'' currently states the date as the second Saturday in 
October, but the fireworks have occurred on the second Saturday or 
Sunday in October. Item 24, ``San Francisco New Years Eve Fireworks,'' 
currently states it occurs on New Year's Eve, but the event has 
typically lasted into the early hours of New Year's Day, so we are 
adding January 1st as a display date as well to be more accurate. A 
change to item 25, ``Sacramento New Years Eve Fireworks,'' not proposed 
in the NPRM will improve the accuracy of the date by deleting ``New 
Years Eve'' from the date description and adding January 1st to the 
display date because the display has typically lasted into the early 
hours of New Year's Day. Item 27, ``Feast of Lanterns Fireworks,'' 
currently states it occurs on the last Saturday of July, but due to the 
variance in the event dates, we are amending the dates to say a 
Saturday or Sunday in July. As stated in Sec.  165.1191(a), the Coast 
Guard will provide exact dates, times, and other details concerning the 
fireworks and associated safety zones listed in table 1 to Sec.  
165.1191 in the Local Notice to Mariners at least 20 days prior to the 
event.
    The Regulated Area description and Sponsor description for item 22, 
``Monte Foundation Fireworks,'' will be revised. A change to item 22 
not proposed in the NPRM will improve the accuracy of the regulated 
area by noting the regulated area will consist of a 1,000 foot radius 
around the launch site, instead of describing it as a 1,000 foot radius 
safety zone. Additionally, this rule corrects the sponsor name for this 
regulated area from ``Monte Foundation Fireworks'' to the ``Monte 
Foundation.''
    This rule adds three safety zones covering three reoccurring 
fireworks events to Table 1 in 33 CFR 165.1191. The three new fireworks 
events will be listed in Table 1 of this section as item 31, ``Fourth 
of July Fireworks, City of Benicia,'' item 32, ``Fourth of July 
Fireworks, City of Vallejo,'' and item 33 ``Berkeley Winter on the 
Waterfront Fireworks.'' All three of these fireworks displays occurred 
in previous years 2017, 2018, and 2019. Both the Benicia, CA fireworks 
and the City of Vallejo, CA fireworks will occur annually on the Fourth 
of July. The Berkeley, CA fireworks displays will occur annually on the 
second Saturday or Sunday in December. The Coast Guard believes it is 
beneficial to include these additional fireworks displays in the list 
of reoccurring permanent regulations to increase public awareness of 
when safety zones will be enforced in these marine areas. No vessel or 
person will be permitted to enter the safety zones without obtaining 
permission from the COTP or a designated representative.
    The Regulated Area description for item 31, ``Benicia Fourth of 
July Fireworks,'' will be revised to include one change from the 
regulatory text of the NPRM. The accuracy of the Regulated Area 
description will be improved by noting the regulated area will consist 
of a 1,000 foot radius around the launch site, instead of describing it 
as a 1,000 foot radius safety zone.

V. Regulatory Analyses

    We developed this 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, and we 
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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt

[[Page 41191]]

from the requirements of Executive Order 13771.
    This regulatory action determination is based on the limited 
duration and narrowly tailored geographic areas of the safety zones. 
Although this rule restricts access to the waters encompassed by the 
safety zones, the effect of this rule will not be significant because 
the local waterway users will be notified via public Notice to Mariners 
to ensure the safety zones will result in minimum impact. The entities 
most likely to be affected are waterfront facilities, commercial 
vessels, and pleasure craft engaged in recreational activities.

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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zones may be small entities, for the reasons stated in section 
IV.A above, this rule will not have a significant economic impact on 
any vessel owner or operator for the following reasons: (i) This rule 
will encompass only a small portion of each affected waterway for a 
limited period of time for each fireworks event, and (ii) the maritime 
public will be advised in advance of these safety zones via Notice to 
Mariners.
    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 rule. If the 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.
    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.

C. Collection of Information

    This rule will 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 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 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.

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

F. Environment

    We have analyzed this 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 determined 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 rule involves safety 
zones of limited sizes and durations. It is 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 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.

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.

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

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.


0
2. In Sec.  165.1191, amend Table 1 by revising entries 7, 8, 9, 19, 
22, 24, 25, and 27, and add entries 31, 32, and 33 to read as follows:


Sec.  165. 1191   Northern California and Lake Tahoe Area Annual 
Fireworks Events.

[[Page 41192]]



                       Table 1 to Sec.   165.1191
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
               7. San Francisco Independence Day Fireworks
------------------------------------------------------------------------
Sponsor...........................  The City of San Francisco.
Event Description.................  Fireworks Display.
Date..............................  July 4th.
Location 1........................  A barge located approximately 1,000
                                     feet off San Francisco Pier 39.
Location 2........................  A barge located approximately 700
                                     feet off of the San Francisco
                                     Municipal Pier at Aquatic Park.
Regulated Area....................  100-foot radius around each
                                     fireworks barge during the loading,
                                     transit, setup, and until the
                                     commencement of the scheduled
                                     display. Increases to a 1,000-foot
                                     radius upon commencement of the
                                     fireworks display.
------------------------------------------------------------------------
              8. Fourth of July Fireworks, Berkeley Marina
------------------------------------------------------------------------
Sponsor...........................  Berkeley Marina.
Event Description.................  Fireworks Display.
Date..............................  July 4th.
Location..........................  A barge located near the Berkeley
                                     Marina Pier.
Regulated Area....................  100-foot radius around the fireworks
                                     barge during the loading, transit,
                                     setup, and until the commencement
                                     of the scheduled display. Increases
                                     to a 1,000-foot radius upon
                                     commencement of the fireworks
                                     display.
------------------------------------------------------------------------
              9. Fourth of July Fireworks, City of Richmond
------------------------------------------------------------------------
Sponsor...........................  Various Sponsors.
Event Description.................  Fireworks Display.
Date..............................  Week of July 4th.
Location..........................  A barge located in the Richmond
                                     Harbor in Richmond, CA.
Regulated Area....................  100-foot radius around the fireworks
                                     barge during the loading, transit,
                                     setup, and until the commencement
                                     of the scheduled display. Increases
                                     to a 560-foot radius upon
                                     commencement of the fireworks
                                     display.
 
                              * * * * * * *
------------------------------------------------------------------------
             19. Incline Village Independence Day Fireworks
------------------------------------------------------------------------
Sponsor...........................  Various Sponsors.
Event Description.................  Fireworks Display.
Date..............................  Week of July 4th.
Location..........................  500-1,000 feet off Incline Village,
                                     NV in Crystal Bay.
Regulated Area....................  100-foot radius around the fireworks
                                     launch barge during the loading of
                                     pyrotechnics aboard the fireworks
                                     barge and during the transit of the
                                     fireworks barge from the loading
                                     location to the display location.
                                     Increases to a 1,000-foot radius
                                     upon commencement of the fireworks
                                     display.
 
                              * * * * * * *
------------------------------------------------------------------------
                     22. Monte Foundation Fireworks
------------------------------------------------------------------------
Sponsor...........................  Monte Foundation.
Event Description.................  Fireworks Display.
Date..............................  Second Saturday or Sunday in
                                     October.
Location..........................  Capitola Pier in Capitola, CA.
Regulated Area....................  1,000-foot radius around the
                                     fireworks launch site in the
                                     navigable waters around and under
                                     the Capitola Pier.
 
                              * * * * * * *
------------------------------------------------------------------------
               24. San Francisco New Year's Eve Fireworks
------------------------------------------------------------------------
Sponsor...........................  City of San Francisco.
Event Description.................  Fireworks Display.
Date..............................  December 30th through January 1st.
Location..........................  1,000 feet off the Embarcadero near
                                     the Ferry Plaza in San Francisco,
                                     CA.
Regulated Area....................  100-foot radius around the fireworks
                                     launch barge during the loading of
                                     pyrotechnics aboard the fireworks
                                     barge and during the transit of the
                                     fireworks barge from the loading
                                     location to the display location.
                                     Increases to a 1,000-foot radius
                                     upon commencement of the fireworks
                                     display.
------------------------------------------------------------------------
                 25. Sacramento New Year's Eve Fireworks
------------------------------------------------------------------------
Sponsor...........................  Various Sponsors.
Event Description.................  Fireworks Display.
Date..............................  December 31st through January 1st.
Location..........................  Near the Tower Bridge, Sacramento
                                     River, Sacramento, CA.

[[Page 41193]]

 
Regulated Area....................  The navigable waters of the
                                     Sacramento River within 700 feet of
                                     the two shore-based launch
                                     locations near the Tower Bridge in
                                     Sacramento, CA and the bridge-based
                                     launch location on the Tower Bridge
                                     in Sacramento, CA.
 
                              * * * * * * *
------------------------------------------------------------------------
                     27. Feast of Lanterns Fireworks
------------------------------------------------------------------------
Sponsor...........................  Feast of Lanterns, Inc.
Event Description.................  Fireworks Display.
Date..............................  A Saturday or Sunday in July.
Location..........................  Near Lover's Point Park in Pacific
                                     Grove, CA.
Regulated Area....................  The area of navigable waters within
                                     a 1,000-foot radius of the launch
                                     platform located on the beach near
                                     Lover's Point Park.
 
                              * * * * * * *
------------------------------------------------------------------------
                  31. Benicia Fourth of July Fireworks
------------------------------------------------------------------------
Sponsor...........................  City of Benicia, CA.
Event Description.................  Fireworks Display.
Date..............................  July 4th.
Location..........................  Carquinez Strait, Benicia, CA.
Regulated Area....................  1,000-foot radius around the
                                     fireworks launch site located on
                                     the Benicia First Street Pier.
------------------------------------------------------------------------
                  32. Vallejo Fourth of July Fireworks
------------------------------------------------------------------------
Sponsor...........................  City of Vallejo, CA.
Event Description.................  Fireworks Display.
Date..............................  July 4th.
Location..........................  Mare Island Strait, Vallejo, CA.
Regulated Area....................  100-foot radius around the fireworks
                                     barge during the loading, transit,
                                     setup, and until the commencement
                                     of the scheduled display. Increases
                                     to a 1,000-foot radius upon
                                     commencement of the fireworks
                                     display.
------------------------------------------------------------------------
             33. Berkeley Winter on the Waterfront Fireworks
------------------------------------------------------------------------
Sponsor...........................  City of Berkeley, CA.
Event Description.................  Two Fireworks Displays.
Date..............................  Second Saturday or Sunday in
                                     December.
Location..........................  Near the entrance to the Berkeley
                                     Marina in Berkeley, CA.
Regulated Area....................  100-foot radius around the fireworks
                                     barge during the loading, transit,
                                     setup, and until the commencement
                                     of the scheduled display. Increases
                                     to a 500-foot radius upon
                                     commencement of the first fireworks
                                     display and remains in effect until
                                     after the conclusion of the second
                                     fireworks display.
------------------------------------------------------------------------


    Dated: June 23, 2020.
Marie B. Byrd,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
[FR Doc. 2020-13995 Filed 7-8-20; 8:45 am]
BILLING CODE 9110-04-P


