[Federal Register Volume 88, Number 114 (Wednesday, June 14, 2023)]
[Rules and Regulations]
[Pages 38751-38752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12716]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0192]
RIN 1625-AA00


Safety Zone; Delaware Bay, Lower Township, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain navigable waters of the Delaware Bay, in Lower Township, NJ. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by a fireworks display. 
Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by the Captain of the Port (COTP), Sector 
Delaware Bay.

DATES: This rule is effective from 9:15 to 10 p.m. on July 3, 2023, or 
a rain date of July 5, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0192 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Dylan Caikowski, Sector Delaware Bay, 
Waterways Management Division, U.S. Coast Guard; telephone (215) 271-
4814, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On February 18, 2023, Lower Township, New Jersey, notified the 
Coast Guard that it will be conducting a fireworks display from 9:30 to 
9:50 p.m. on July 3, 2023, or a rain date of July 5, 2023, to celebrate 
Independence Day. The fireworks are to be launched from a barge in the 
Delaware Bay approximately 350 yards west of North Cape May Beach, in 
Lower Township, NJ. In response, on April 5, 2023, the Coast Guard 
published a notice of proposed rulemaking (NPRM) titled Safety Zone; 
Delaware Bay, Lower Township, NJ. There we stated why we issued the 
NPRM and invited comments on our proposed regulatory action related to 
this fireworks display. During the comment period that ended May 5, 
2023, we received no comments.
    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 of 
this rule would be impracticable because there is insufficient time to 
allow for 30 days after publication. This rule needs to be in force by 
July 3, 2023, to ensure the safety of spectators and the general public 
from hazards associated with a barge-based fireworks display. Hazards 
include accidental discharge of fireworks, dangerous projectiles, and 
falling hot embers or other debris.

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 barge-based fireworks display will be 
a safety concern for anyone within 300 yards of the fireworks barge. 
The purpose of this rule is to ensure safety of vessels and the 
navigable waters in the safety zone before, during, and after a barge-
based fireworks display.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published April 
5, 2023. There are no changes in the regulatory text of this rule from 
the proposed rule in the NPRM.
    This rule establishes a temporary safety zone from 9:15 to 10 p.m. 
on July 3, 2023, or a rain date of July 5, 2023. The safety zone will 
cover all navigable waters within 300 yards of a barge in the Delaware 
Bay located at approximate position latitude 38[deg]59'7.08'' N, 
longitude 074[deg]57'49.47'' W. The duration of the zone is intended to 
ensure the safety of vessels and these navigable waters before, during, 
and after the scheduled 9:30 p.m. to 9:50 p.m. fireworks display. No 
vessel or person would be permitted to enter the safety zone without 
obtaining permission from the COTP or a designated representative.

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. 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).
    This regulatory action determination is based on the following 
factors: (1) although persons and vessels may not enter, transit 
through, anchor in, or remain within the safety zone without 
authorization from the COTP or a designated representative, they may 
operate in the surrounding area during the enforcement period; (2) 
persons and vessels will still be able to enter, transit through, 
anchor in, or remain within the regulated area if authorized by the 
COTP; and (3) the Coast Guard will provide advance notification of the 
safety zone to the local maritime community by Local Notice to Mariners 
and Broadcast Notice to Mariners.

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

[[Page 38752]]

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 zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 a 
temporary safety zone lasting 45 minutes that would prohibit entry 
within 300 yards of a fireworks barge. 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, 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.


0
2. Add Sec.  165.T05-0192 to read as follows:


Sec.  165.T05-0192  Safety Zone; Delaware Bay, Lower Township, NJ.

    (a) Location. All navigable waters within 300 yards of a barge in 
the Delaware Bay located at approximate position latitude 
38[deg]59'7.08'' N, longitude 074[deg]57'49.47'' W.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard petty 
officer, warrant or commissioned officer on board a Coast Guard vessel 
or on board a federal, state, or local law enforcement vessel assisting 
the Captain of the Port (COTP), Sector Delaware Bay in the enforcement 
of the safety zone.
    (c) Regulations.
    (1) Under the general safety zone regulations in subpart C of this 
part, you may not enter the safety zone described in paragraph (a) of 
this section unless authorized by the COTP or the COTP's designated 
representative.
    (2) To seek permission to enter or remain in the zone, contact the 
COTP or the COTP's representative via VHF-FM channel 16 or 215-271-
4807. Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (3) No vessel may take on bunkers or conduct lightering operations 
within the safety zone during its enforcement period.
    (4) This section applies to all vessels except those engaged in law 
enforcement, aids to navigation servicing, and emergency response 
operations.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement period. This zone will be enforced from 
approximately 9:15 to 10 p.m. on July 3, 2023, or a rain date of July 
5, 2023.

    Dated: June 8, 2023.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port, Sector Delaware Bay.
[FR Doc. 2023-12716 Filed 6-13-23; 8:45 am]
BILLING CODE 9110-04-P


