[Federal Register Volume 69, Number 85 (Monday, May 3, 2004)]
[Proposed Rules]
[Pages 24112-24114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9906]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-02-009]
RIN 1625-AA00


Safety Zones; Captain of the Port Buffalo Zone

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On May 10, 2002, the Coast Guard published a notice of 
proposed rulemaking requesting comments on the proposed establishment 
of safety zones for annual fireworks displays located in the Captain of 
the Port Buffalo Zone. This supplemental notice of proposed rulemaking 
proposes to remove twelve events, add four additional events, and 
alters the location and time of two events. The proposed changes 
reflect the inability of several events to provide exact dates for the 
annual fireworks.

DATES: Comments must be received on or before June 17, 2004.

ADDRESSES: Comments may be mailed or delivered to: Commanding Officer, 
U.S. Coast Guard Marine Safety Office (MSO) Buffalo, 1 Fuhrmann Blvd., 
Buffalo, NY 14203. MSO 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: Lt. Craig A. Wyatt, U.S. Coast Guard 
MSO Buffalo, (716) 843-9570.

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 your comments have reached us, please enclose a 
stamped, self-addressed envelope or postcard. This unit will mail the 
envelope or postcard by the following workday.
    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

    On May 10, 2002, the Coast Guard published an NPRM in the Federal 
Register proposing 14 safety zones for annual firework displays in the 
Captain of the Port Buffalo zone (67 FR 31747). We proposed these 
safety zones to control vessel traffic within the immediate location of 
the fireworks launching area during annual fireworks displays. The 
Coast Guard received no comments in response to this NPRM.
    This supplement to the proposed regulation removes twelve events 
that were proposed in the NPRM, adds four new events (Ontario Memorial 
Day Fireworks, Ontario, NY; Olcott Fireworks, Olcott, NY; Harbor Sound 
and Light Festival, Sackets Harbor, NY; Village of Sackets Harbor 4th 
of July Display, Sackets Harbor, NY), and revises the location and time 
of two events (Oswego Independence Day Fireworks, and Oswego Harborfest 
Fireworks Display). This supplemental notice of proposed rulemaking 
proposes to establish 6 permanent safety zones that will be activated 
for marine events occurring annually at the same location.
    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 launched 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 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 will 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 gives the public the opportunity to comment on the proposed 
zones, provides better notice than promulgating temporary rules 
annually, and decreases the amount of annual paperwork required for 
these events. The Coast Guard has not previously received notice of any 
impact caused by safety zones created for these events in the past.

Discussion of Proposed Rule

    The proposed size of these safety zones was determined using 
National Fire Protection Association Pamphlet 1123, Code for Fireworks 
Displays, and local area fire department standards, combined with the 
Coast Guard's knowledge of waterway conditions in these areas.
    The Coast Guard believes this proposed regulation will not pose any 
new problems for commercial vessels transiting the area. In the event 
that shipping would be affected by this proposed regulation, commercial 
vessels may request permission from the Captain of the Port Buffalo to 
transit through the safety zone.
    The Coast Guard will announce the exact times and dates for these 
events by publishing a notice of implementation of regulation in the 
Federal Register, as well as announcing the date(s) in the Ninth Coast 
Guard District Local Notice

[[Page 24113]]

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 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 
proposed rule under that order. It is not significant under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS). We expect the economic impact of this proposed rule to 
be so minimal that a full Regulatory Evaluation under the regulatory 
policies and procedures of DHS is unnecessary.
    This determination is based on the minimal time that vessels will 
be restricted from the zones, and 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 are only enforced for a few hours on the day of the 
event on an annual basis. Vessel traffic can safely pass outside the 
proposed safety zones during the events.
    In cases where traffic congestion is greater than expected and/or 
blocks shipping channels, with the permission of the Captain of the 
Port Buffalo, traffic may be allowed to pass through the safety zones 
under Coast Guard or assisting agency escort. Before the annual 
enforcement period, the Coast Guard will publish a notice of 
implementation of regulation in the Federal Register, and will issue 
maritime advisories in the Ninth Coast Guard District Local Notice to 
Mariners, Marine Information Broadcasts and facsimile broadcasts--
forums widely available to users who might be in the affected area. 
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 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 proposed 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.)
    Small businesses may send comments on 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).

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 and 
have determined that this proposed 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 proposed 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 proposed rule is not an economically significant 
rule and does not concern an environmental risk to health or risk to 
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 M16475.1D, 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 proposed 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.

[[Page 24114]]

Energy Effects

    We have analyzed this proposed 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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
no. 0170.1.

    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) Oswego Independence Day Fireworks, Oswego, NY:
    (i) Location. All waters of Oswego Harbor, in Lake Ontario, within 
a 1,000-foot radius of the fireworks barge moored or anchored in 
approximate position 43[deg]28'05'' N, 076[deg]31'01'' W (NAD 1983).
    (ii) Enforcement date. The first Sunday in July.
    (2) Oswego Harborfest Fireworks Display, Oswego, NY:
    (i) Location. (A) All waters of Oswego Harbor within a 300-yard 
radius around the fireworks barge located at 43[deg]28'08'' N, 
076[deg]31'07'' W (NAD 1983)
    (B) All waters surrounding the fireworks display on the western 
break wall; 43[deg]27'55'' N, 076[deg]31'30'' W then to 43[deg]28'03'' 
N, 076[deg]31'12'' W then to 43[deg]27'54'' N, 076[deg]31'06'' then to 
43[deg]27'48'' N, 076[deg]31'26'' W then back to the point of origin 
(NAD 1983).
    (ii) Enforcement date. The last Saturday during the last full week 
of July.
    (3) Ontario Memorial Day Fireworks, Ontario, NY:
    (i) Location. All waters of Lake Ontario within a 200-yard radius 
of the fireworks display at Bear Creek Harbor located in position 
43[deg]16'39'' N, 077[deg]16'35'' W (NAD 1983).
    (ii) Enforcement date. Memorial Day, the last Monday in May.
    (4) Olcott Fireworks, Olcott, NY:
    (i) Location. All waters of Lake Ontario within a 300-yard radius 
of the fireworks display on the west break wall of the Olcott Harbor 
entrance located in position 43[deg]20'25'' N, 078[deg]43'09'' W (NAD 
1983).
    (ii) Enforcement date. July 3.
    (5) Harbor Sound and Light Festival, Sackets Harbor, NY:
    (i) Location. All waters of Lake Ontario within a 300-yard radius 
of the fireworks display on the beach just southwest of Mill Creek 
located in position 43[deg]57'18'' N, 076[deg]06'35'' W (NAD 1983).
    (ii) Enforcement date. The second Saturday in June.
    (6) Village of Sackets Harbor 4th of July Display, Sackets Harbor, 
NY:
    (i) Location. All waters of Lake Ontario within a 200-yard radius 
of the fireworks display on the beach of Battlefield State Park located 
in position 43[deg]56'56'' N, 076[deg]07'43'' W (NAD 1983).
    (ii) Enforcement date. July 4.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) All persons and vessels must comply with the instructions of 
the 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) 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.
    (4) Marine Event Permits (CG-4423) will still need to be sent to 
U.S. Coast Guard Group Buffalo, NY.
    (c) Notice of annual enforcement period. The Captain of the Port 
Buffalo will publish, at least 10 days in advance of each annual event, 
a notice of implementation of regulation in the Federal Register. The 
COTP may also issue notices in the Ninth Coast Guard District Local 
Notice to Mariners the dates and times this section will be enforced 
each year.

    Dated: April 22, 2004.
P. M. Gugg,
Commander, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 04-9906 Filed 4-30-04; 8:45 am]
BILLING CODE 4910-15-P