[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Proposed Rules]
[Pages 29151-29153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14381]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0461]
RIN 1625-AA00


Safety Zones; Annual Events Requiring Safety Zones in the Captain 
of the Port Buffalo Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishment of safety zones for 
annual events in the Captain of the Port Buffalo Zone. This proposed 
rule adds events not previously published in Coast Guard regulations. 
These safety zones are necessary to protect spectators, participants, 
and vessels from the hazards associated with fireworks displays or 
other events.

DATES: Comments and related materials must reach the Coast Guard on or 
before July 20, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0461 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Federal eRulemaking Port: http://www.regulations.gov.
    (2) Fax: 202-493-2251
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: LT Brian Sadler, Waterways Management 
Division Chief, Sector Buffalo, 1 Fuhrmann Blvd., Buffalo, NY 14203; 
telephone 716-843-9573, e-mail [email protected]. If you have 
questions on viewing or submitting material to the docket, call Renee 
V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0461), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0461'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0461 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    We propose these safety zones to control vessel traffic within the 
immediate location of the fireworks launching area during annual 
fireworks displays.
    The Coast Guard is now proposing to add 6 permanent safety zones in 
33 CFR 165.939. Establishing permanent safety zones provides better 
notice than promulgating temporary rules annually, and decreases the 
amount of paperwork required for these events. The Coast Guard has not 
previously received notice of any impact caused by safety zones created 
for these events.
    These safety zones are necessary to protect vessels and people from 
the hazards associated with fireworks displays or other events. Such 
hazards include obstructions to the waterway that may cause marine 
casualties and the explosive danger of fireworks and debris falling 
into the water that may cause death or serious bodily harm.

Discussion of Proposed Rule

    The proposed rule and associated safety zones are necessary to 
ensure the safety of vessels and people during

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annual firework events in the Captain of the Port Buffalo area of 
responsibility that may pose a hazard to the public.
    The proposed safety zones will be enforced only immediately before, 
during, and after events that pose hazard to the public, and only upon 
notice by the Captain of the Port.
    The Captain of the Port Buffalo will notify the public that the 
zones in this proposal are or will be enforced by all appropriate means 
to the affected segments of the public including publication in the 
Federal Register as practicable, in accordance with 33 CFR 165.7(a). 
Such means of notification may also include, but are not limited to 
Broadcast Notice to Mariners or Local Notice to Mariners. The Captain 
of the Port will issue a Broadcast Notice to Mariners notifying the 
public when enforcement of the safety zone established by this section 
is cancelled.
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port Buffalo or the designated 
representative. Entry into, transiting, or anchoring within the safety 
zone is prohibited unless authorized by the Captain of the Port Buffalo 
Zone, or his designated representative. The Captain of the Port Buffalo 
Zone or his designated representative may be contacted via VHF Channel 
16.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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 it under that Order.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. The Coast 
Guard's use of these safety zones will be periodic, of short duration, 
and designed to minimize the impact on navigable waters. These safety 
zones will only be enforced immediately before, during, and after the 
time the events occur. Furthermore, these safety zones have been 
designed to allow vessels to transit unrestricted to portions of the 
waterways not affected by the safety zones. The Coast Guard expects 
insignificant adverse impact to mariners from the activation of these 
safety zones.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
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 vessels 
intending to transit or anchor in the areas designated as safety zones 
during the dates and times the safety zones are being enforced.
    These safety zones would not have a significant economic impact on 
a substantial number of small entities for the following reasons: This 
proposed rule would be in effect for short periods of time, and only 
once per year, per zone. The safety zones have been designed to allow 
traffic to pass safely around the zone whenever possible and vessels 
will be allowed to pass through the zones with the permission of the 
Captain of the Port.
    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 on them and participate in the rulemaking. 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 CDR Joseph 
Boudrow, Prevention Dept. Chief, Sector Buffalo, 1 Fuhrmann Blvd., 
Buffalo, NY 14203; telephone 716-843-9572, e-mail 
[email protected]. The Coast Guard will not retaliate against 
small entities that question or complain about this proposed rule or 
any policy or action of the Coast Guard.

Collection of Information

    This proposed 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 a 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 proposed 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 proposed rule will not result in such 
expenditure, we nevertheless discuss its effects elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule will not affect the 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

    We have 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 create an environmental risk to health or risk to safety that 
may disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive

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Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.1D, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves the establishment of safety zones and as such should be 
categorically excluded, under figure 2-1, paragraph 34(g) of the 
Instruction from further environmental documentation.
    We seek any comments or information that may lead to the discovery 
of a significant environmental impact from this proposed rule.

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, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1

    2. In Sec.  165.939 revise paragraph (a) introductory text and add 
paragraphs (a)(27) through (32) to read as follows:


Sec.  165.939  Safety Zones; Annual Fireworks Events in the Captain of 
the Port Buffalo Zone.

    (a) Safety Zones:
* * * * *
    (27) Independence Celebration Fireworks, Lake Ontario, Oswego 
Harbor, Oswego, NY--(i) Location. All waters of Lake Ontario at within 
an 800-foot radius of position 43[deg]28'05'' N, 076[deg]31'01'' W; in 
Oswego Harbor, Oswego, NY. (DATUM: NAD 83).
    (ii) Enforcement date. One day in the first week of July.
    (28) Rochester Harborfest, Lake Ontario at the Genesee River, 
Rochester, NY--(i) Location. All waters of Lake Ontario at Genesee 
River, within a 500-foot radius of position 43[deg]15'21'' N, 
077[deg]36'19'' W; in Rochester, NY. [DATUM: NAD 83]. Located on the 
Ontario Beach West pier.
    (ii) Enforcement date. One weekend after Fathers Day weekend in 
June.
    (29) A Salute to Our Hero's, Lake Ontario, Hamlin, NY--(i) 
Location. All waters of Lake Ontario within a 300-foot radius of 
position 43[deg]16'27'' N, 076[deg]58'27'' W; off Hamlin Beach State 
Park Area 1. (DATUM: NAD 83).
    (ii) Enforcement date. One day in the first week of July.
    (30) Olcott NY Fireworks, Lake Ontario, Olcott, NY--(i) Location. 
All waters of Lake Ontario within a 600-foot radius of position 
43[deg]20'24'' N, 078[deg]43'09'' W; located on the West Federal Pier 
in Olcott, NY. (DATUM: NAD 83).
    (ii) Enforcement date. One day in the first week of July.
    (31) Erie Summer Festival of the Arts, Lake Erie, Presque Isle Bay, 
Erie, PA--(i) Location. All waters of Lake Erie, Presque Isle Bay 
within a 420-foot radius of position 42[deg]07'45'' N, 080[deg]06'20'' 
W; in Erie, PA (DATUM: NAD 83).
    (ii) Enforcement date. One day in the last week of June.
    (32) Mercyhurst College ``Old Fashion 4th of July,'' Lake Erie, 
Presque Isle Bay, Erie, PA--(i) Location. All waters of Lake Erie, 
Presque Isle Bay 1,000 feet NW of the Chestnut Street Boat Launch in a 
400-foot radius of position 42[deg]08'41'' N, 080[deg]06'40'' W; in 
Erie, PA. (DATUM: NAD 83).
    (ii) Enforcement date. One day in the first week of July.

    Dated: June 4, 2009.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. E9-14381 Filed 6-18-09; 8:45 am]
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