[Federal Register Volume 70, Number 13 (Friday, January 21, 2005)]
[Rules and Regulations]
[Pages 3145-3147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1103]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-04-140]
RIN 1625-AA00


Safety Zones; Captain of the Port Buffalo Zone

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing permanent safety zones on a 
portion of Lake Ontario. These safety zones are necessary to ensure the 
safety of spectators and vessels from the hazards associated with 
fireworks displays. These safety zones restrict vessel traffic from 
portions of Lake Ontario, New York, during annual fireworks displays.

DATES: This rule is effective February 22, 2005.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD9-02-009 and are available for inspection or 
copying at U.S. Coast Guard Marine Safety Office Buffalo, 1 Fuhrmann 
Blvd., Buffalo, NY 14203 between 8 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:

Regulatory Information

    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 received no comments 
on the proposal. No public hearing was requested, and none held.

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.
    On May 3, 2004, the Coast Guard published a supplement to the 
proposed regulation (69 FR 24112-1), which removed twelve events that 
were proposed in the NPRM, added 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 July 4 
Display, Sackets Harbor, NY), and revised the location and time of two 
events (Oswego Independence Day Fireworks, and Oswego Harborfest 
Fireworks Display). This final rule establishes 6 permanent safety 
zones that will be enforced 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

[[Page 3146]]

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 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 Comments and Changes

    The Coast Guard received no comments regarding the proposed 
rulemaking.

Regulatory Evaluation

    This 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 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 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 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 rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will 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 will not have a significant economic impact on a 
substantial number of small entities for the following reasons: The 
safety 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 safety 
zones during the events.
    In cases where traffic congestion is greater than expected 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 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 (Public Law 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects and participate in the rulemaking process. If the rule will 
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 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 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 or more in any 
one year. Though this rule does not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule does 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 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 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 
concern 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

[[Page 3147]]

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.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. This rule fits the category from paragraph 
(34)(g) because it establishes a security zone.
    Under figure 2-1, paragraph (34)(g), of the Instruction, an 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' are not required for this rule.

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, 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.


0
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'' W 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 July 4 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: November 15, 2004.
P.M. Gugg,
Commander, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 05-1103 Filed 1-19-05; 8:45 am]
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