[Federal Register Volume 67, Number 91 (Friday, May 10, 2002)]
[Proposed Rules]
[Pages 31747-31750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11660]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD09-02-009]
RIN 2115-AA97


Safety Zones; Captain of the Port Buffalo Zone

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish safety zones for annual 
fireworks displays located in the Captain of the Port Buffalo Zone. 
This action is necessary to provide for the safety of life and property 
on navigable waters during each event. This action is intended to 
restrict vessel traffic in a portion of the Captain of the Port Buffalo 
Zone.

DATES: Comments must be received on or before June 10, 2002.

ADDRESSES: Comments may be mailed or delivered to: Commanding Officer, 
U.S. Coast Guard Marine Safety Office Buffalo, 1 Fuhrmann Blvd., 
Buffalo, NY 14203. Marine Safety Office Buffalo maintains the public 
docket for this rulemaking. Comments and material received from the 
public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at MSO Buffalo between 7:30 a.m. 
and 4 p.m. Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander David Flaherty at 
(716) 843-9574.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number on this rulemaking (CGD09-02-
009), indicate the specific section of this proposal to which each 
comment applies, and give the reason(s) for each comment. Please submit 
all comments and attachments in an unbound format, no larger than 8\1/
2\ by 11 inches, suitable for photocopying and electronic filing. If 
you would like to know they reached us, please enclose a stamped, self-
addressed envelope or postcard.
    The Coast Guard will consider all comments received during the 
comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may request a 
public meeting by writing to MSO Buffalo at the address listed under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, the Coast Guard will hold a public 
meeting at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    The Coast Guard proposes to establish 14 permanent safety zones 
that will be activated for marine events occurring annually at the same 
location. The 14 proposed locations are: (1) The waters of the Niagara 
River within 300-yards of a fireworks barge moored/anchored with its 
center in approximate position 43 deg.01'52" N, 078 deg.53'16" W; (2) 
all navigable waters of Sodus Bay Channel between a line drawn from 
buoy R4 to buoy G5 and the West Pier; (3) all waters of the Black Rock 
Canal between a line drawn bulkhead to bulkhead at Buoy #5 extended to 
a line drawn bulkhead to bulkhead at Buoy # 12 and the Black Rock Canal 
Entrance Channel within 1000-feet of the fireworks display located at 
position 42 deg.52'39" N, 078 deg.53'42" W; (4) the waters of the 
Niagara River and Lake Erie between Fort Erie, Ontario, Canada and 
Buffalo, NY; (5) all waters of Rochester Harbor and the Genesee River 
encompassed by an area 300-yards around the fireworks barge moored/
anchored in approximate position: 43 deg.15.8' N, 077 deg.36.0' W; (6) 
the waters of the Niagara River within 300-yards of the fireworks 
barged moored/anchored with its center in approximate position 
43 deg.01'06" N, 078 deg.53'13" W; (7) the navigable waters of the 
Niagara River between Grand Island and Tonawanda, NY; (8) all waters of 
Oswego Harbor in Lake Ontario within 300-yards of a fireworks barge 
moored/anchored in approximate position 43 deg.28'25" N, 076 deg.31'01" 
W; (9) all waters of Oswego Harbor within an 800-foot radius around the 
fireworks barge located at 43 deg.28' N, 076 deg.31'9" W; (10) all 
waters of Oswego Harbor within a line from West Pierhead Light at 
43 deg.28'25" N, 076 deg.31' W to the East Pierhead light at 
43 deg.28'22" N, 076 deg.30'51" W, then along a line extending 
southeast to 43 deg.28'08" N, 076 deg.30'57" W, west along the shore to 
43 deg.27'57" N, 076 deg.30'45" W, then along a line west to Oswego 
Harbor Buoy #2, and then following a line back to the West Pierhead 
Light; (11) all navigable waters of Presque Isle Bay within an 800-foot 
arc around the fireworks launch platform located at the end of Dobbins 
Landing in approximate position 42 deg.08'19" N, 080 deg.05'30" W; (12) 
all waters of Lake Ontario within Port Bay 500-feet around a barge 
located at approximate position 42 deg.17'46" N, 076 deg.50'02" W; (13) 
St. Lawrence River within Wheathouse Bay, St. Lawrence River; (14) a 
300-yd radius around Heart Island. All coordinates are based upon the 
North American Datum of 1983 (NAD 83).
    Based on recent accidents that have occurred in other Captain of 
the Port zones, and the explosive hazard associated with these events, 
the Captain of the Port has determined that fireworks launches in close 
proximity to watercraft pose a significant risk to public safety and 
property. The likely combination of large numbers of inexperienced 
recreational boaters, congested waterways, darkness

[[Page 31748]]

punctuated by bright flashes of light, alcohol use, and debris falling 
into the water could easily result in serious injuries or fatalities. 
Establishing a safety zone to control vessel movement in the vicinity 
of these marine event locations would help ensure the safety of persons 
and property at these events and help minimize the associated risk.
    Establishing permanent safety zones by notice and comment 
rulemaking would give the public the opportunity to comment on the 
proposed zones, provide better notice than promulgating temporary rules 
annually, and decrease the amount of annual paperwork required for 
these events. The Coast Guard has not previously received notice of any 
impact caused by these events.

Discussion of Proposed Rule

    The size of these proposed safety zones was determined using 
National Fire Protection Association and local area fire department 
standards, combined with the Coast Guard's knowledge of waterway 
conditions in these areas.
    The Coast Guard believes that these proposed rules would not pose 
any new problems for commercial vessels transiting the area. In the 
unlikely event that shipping would be affected by these new 
regulations, commercial vessels would be able to request permission 
from the Captain of the Port Buffalo to transit through the safety 
zone. No commercial shipping lanes would be impacted as a result of 
this rulemaking.
    The Coast Guard will announce the exact times and dates for these 
events by publishing a Notice of Implementation in the Federal Register 
as well as in the Ninth Coast Guard District Local Notice to Mariners, 
marine information broadcasts, and, for those who request it from 
Marine Safety Office Buffalo, by facsimile (fax).

Regulatory Evaluation

    This proposed 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 this rule under that Order. It is not 
significant under the regulatory policies and procedures of the 
Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We 
expect the economic impact of this proposed rule to be so minimal that 
a full Regulatory Evaluation under paragraph 10(e) of the regulatory 
policies and procedures of DOT is unnecessary.
    This determination is based on the minimal time that vessels would 
be restricted from the zones. Further, all of the zones are in areas 
where the Coast Guard expects insignificant adverse impact to mariners 
from the zones' activation.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which might be small entities: The owners or operators of commercial 
vessels intending to transit a portion of an activated safety zone.
    These safety zones would not have a significant economic impact on 
a substantial number of small entities for the following reasons: The 
proposed zones would only be in effect for a few hours on the day of 
the event on an annual basis. Vessel traffic could safely pass outside 
the proposed safety zones during the events. In cases where traffic 
congestion would be greater than expected and blocks shipping channels, 
traffic may be allowed to pass through the safety zone under Coast 
Guard escort with the permission of the Captain of the Port Buffalo. 
Before the proposed effective period, the Coast Guard would issue 
maritime advisories widely available to users who might be in the 
affected area by publication in the Federal Register and the Ninth 
Coast Guard District Local Notice to Mariners Marine information 
broadcasts and facsimile broadcasts may also be made. Additionally, the 
Coast Guard has not received any negative reports from small entities 
affected during these displays in previous years.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this 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.

Assistance for Small Entities

    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 so that they can better 
evaluate its effects and participate in the rulemaking process. 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 contact Marine Safety 
Office Buffalo (see ADDRESSES.)

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    We have analyzed this proposed rule under Executive Order 13132, 
Federalism, and have determined that this rule does not have 
implications for federalism under that Order.

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

Taking of Private Property

    This proposed rule would 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 proposed 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

    The Coast Guard has analyzed this proposed rule under Executive 
Order 13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This rule is not an economically significant rule and 
would not create an environmental risk to health or risk to

[[Page 31749]]

safety that may disproportionately affect children.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph 34(g) of Commandant 
Instruction M16475.1C, this proposed rule is categorically excluded 
from further environmental documentation. A written ``Categorical 
Exclusion Determination'' is available in the docket for inspection or 
copying where indicated under ADDRESSES.

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. We invite your 
comments on how this proposed rule might impact tribal governments, 
even if that impact may not constitute a ``tribal implication'' under 
the Order.

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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

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 proposes 
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: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

    2. Add Sec. 165.914 to read as follows:


Sec. 165.914  Safety Zones; Annual fireworks events in the Captain of 
the Port Buffalo Zone.

    (a) Safety zones. The following areas are designated safety zones:
    (1) Canal Fest, Tonawanda, NY.
    (i) Location. All waters of the Niagara River within 300-yards of a 
fireworks barge moored/anchored with its center in approximate position 
43 deg.01'52" N, 078 deg.53'16" W (NAD 1983).
    (ii) Expected date. One day in mid July.
    (2) Carnival on the Bay, Sodus Point, NY.
    (i) Location. All navigable waters of Sodus Bay Channel between a 
line drawn from buoy R4 to buoy G5 and the West Pier.
    (ii) Expected date. One day in the last week of June.
    (3) Friendship Festival, Buffalo, NY.
    (i) Location. All waters of Lake Erie, the Black Rock Canal between 
a line drawn bulkhead to bulkhead at Buoy #5 extended to a line drawn 
bulkhead to bulkhead at Buoy #12 and the Black Rock Canal Entrance 
Channel within 1000-feet of the fireworks display located at position 
42 deg.52'39" N 078 deg.53'42" W (NAD 1983).
    (ii) Expected date. One day in the first week of July.
    (4) Friendship Festival Air Show, Buffalo, NY.
    (i) Location. The waters the Niagara River and Lake Erie between 
Fort Erie, Ontario, Canada and Buffalo, NY.
    (ii) Expected date. One day in the first week of July.
    (5) Rochester Harbor Fest, Rochester, NY.
    (i) Location. All waters of Rochester Harbor and the Genesee River 
encompassed by an area 300-yards around the fireworks barge moored/
anchored in approximate position: 43 deg.15.8' N 077 deg.36.0' W (NAD 
1983).
    (ii) Expected date. One day in early August.
    (6) Tonawanda/North Tonawanda Fireworks Display.
    (i) Location. The waters of the Niagara River within 300-yards of 
the fireworks barged moored/anchored with its center in approximate 
position 43 deg.01'06" N, 078 deg.53'13" W (NAD 1983).
    (ii) Expected date. One day in the first week of July.
    (7) Hydromania Power Boat Races, Tonawanda, NY.
    (i) Location. All the navigable waters of the Niagara River between 
Grand Island and Tonawanda, NY.
    (ii) Expected date. Two days in late June.
    (8) Oswego Independence Day Fireworks, Oswego, NY.
    (i) Location. All waters of Oswego Harbor, in Lake Ontario, within 
300-yards of a fireworks barge moored/anchored in approximate position 
43 deg.28'25" N, 076 deg.31'01" W (NAD 1983).
    (ii) Expected date. One day in the first week of July.
    (9) Oswego Harborfest Fireworks Display, Oswego, NY.
    (i) Location. All waters of Oswego Harbor within an 800-foot radius 
around the fireworks barge located at 43 deg.28'N, 076 deg.31'9" W (NAD 
1983).
    (ii) Expected date. One day in the last week of July.
    (10) Oswego Harborfest Tall Ship Battle Demo, Oswego, NY.
    (i) Location. All waters of Oswego Harbor within a line from West 
Pierhead Light at 43 deg.28'25" N, 076 deg.31' W to East Pierhead light 
at 43 deg.28'22" N, 076 deg.30'51" W, then along a line extending 
southeast to 43 deg.28'08" N, 076 deg.30'57", west along the shore to 
43 deg.27'57" N, 076 deg.30'45" W, then following a line west to Oswego 
Harbor Buoy #2, and along a line back to the West Pierhead Light (NAD 
1983).
    (ii) Expected date. One day in the last week of July.
    (11) We Love Erie Days Fireworks Display, Erie, PA.
    (i) Location. all navigable waters of Presque Isle Bay within an 
800-foot arc around the fireworks launch platform located at the end of 
Dobbins Landing in approximate position 42 deg.08'19" N, 080 deg.05'30" 
W (NAD 1983).
    (ii) Expected date. One day in mid August.
    (12) Thom Graves Memorial Fireworks Display, Wolcott, NY.
    (i) Location. All waters of Lake Ontario within Port Bay, 500 feet 
around a barge located at approximate position 42 deg.17'46" N, 
076 deg.50'02" W. (NAD 1983).
    (ii) Expected date. One day in the first week of July.
    (13) Thunder on Wheathouse Bay Power Boat Races, Ogdensburg, NY.
    (i) Location. All waters of St. Lawrence River within Wheathouse 
Bay.
    (ii) Expected date. Three days in mid June.
    (14) Fireworks Over Boldt Castle, Alexandria Bay, NY.
    (i) Location. All waters of the St. Lawrence River within a 300-
yard radius of the fireworks display on Heart Island.
    (ii) Expected date. One day in the first week of July.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) All persons and vessels shall comply with the instructions of 
the

[[Page 31750]]

Coast Guard Captain of the Port or the designated on scene patrol 
personnel. Coast Guard patrol personnel include commissioned, warrant, 
and petty officers of the U.S. Coast Guard. Upon being hailed by a U.S. 
Coast Guard vessel via siren, radio, flashing light, or other means, 
the operator shall proceed as directed.
    (3) The safety zones in this regulation are outside navigation 
channels and will not adversely affect shipping. In cases where 
shipping is affected, commercial vessels may request permission from 
the Captain of the Port Buffalo to transit the safety zone. Approval 
will be made on a case-by-case basis. Requests must be made in advance 
and approved by the Captain of the Port before transits will be 
authorized. The Captain of the Port may be contacted via U.S. Coast 
Guard Group Buffalo on Channel 16, VHF-FM.
    (c) Effective period. The Captain of the Port Buffalo will publish 
at least 10 days in advance a Notice of Implementation in the Federal 
Register as well as in the Ninth Coast Guard District Local Notice to 
Mariners the dates and times this section is in effect.

    Dated: April 22, 2002.
S.D. Hardy,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 02-11660 Filed 5-9-02; 8:45 am]
BILLING CODE 4910-15-P