[Federal Register Volume 75, Number 161 (Friday, August 20, 2010)]
[Rules and Regulations]
[Pages 51377-51379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20744]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0745]
RIN 1625-AA00


Safety Zone; Thunder on Niagara, Niagara River, North Tonawanda, 
NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on 
Niagara River, North Tonawanda, NY. This safety zone is intended to 
restrict vessels from a portion of the Niagara River during the Thunder 
on Niagara powerboat races. This safety zone is necessary to protect 
spectators and vessels from the hazards associated with powerboat 
races.

DATES: This rule is effective from 10 a.m. on August 22, 2010 to 6 p.m. 
on August 23, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0745 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-0745 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0745 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0745 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Brian Sadler, Waterways 
Management Division Chief, U.S. Coast Guard Sector Buffalo; telephone 
716-843-9573, e-mail [email protected]. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a

[[Page 51378]]

notice of proposed rulemaking (NPRM) with respect to this rule because 
it is contrary to the public interest to delay the effective date of 
this rule. Delaying the effective date by first publishing an NPRM 
would be contrary to the safety zone's intended objectives because 
immediate action is needed to protect persons and vessels against the 
dangers presented by a power boat race.
    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. Due to the need for immediate 
action, the restriction of vessel traffic is necessary to protect life, 
property and the environment; therefore, a 30-day notice is 
impracticable. Delaying the effective date would be contrary to the 
safety zone's intended objectives of protecting persons and vessels 
involved in the event, and enhancing public and maritime safety.

Background and Purpose

    This temporary safety zone is necessary to ensure the safety of 
vessels and spectators from the hazards associated with powerboat 
races. Based on recent accidents that have occurred in other Captain of 
the Port zones, the Captain of the Port Buffalo, has determined 
powerboat races present significant risks to public safety and 
property. The likely combination of large numbers of recreational 
vessels, congested waterways, and alcohol use, present a significant 
risk of serious injuries or fatalities.

Discussion of Rule

    This temporary safety zone is necessary to ensure the safety of 
spectators and vessels during the Thunder on Niagara powerboat races. 
This rule is effective and will be enforced from 10 a.m. on August 22, 
2010 to 6 p.m. on August 23, 2010. The safety zone will encompass all 
waters of the Niagara River, North Tonawanda, NY within two miles of 
the Grand Island Bridge located at 43[deg]03'36'' N, 078[deg]54'45'' W 
to 43[deg]03'09'' N, 078[deg]55'21'' W to 43[deg]02'42'' N, 
078[deg]54'09'' W to 43[deg]03'00'' N, 078[deg]53'42'' W, then 
returning to the point of origin. (DATUM: NAD 83).

Regulatory Analyses

    We developed this 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 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.
    The Coast Guard determined that this rule is not a significant 
regulatory action because the safety zone will be in effect for a 
relatively short amount of time. Plus, vessels may still transit with 
the permission of the Captain of the Port Buffalo or his designated on-
scene representative.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 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 vessels intending to 
transit or anchor in a portion of the Niagara River, North Tonawanda, 
NY, between 10 a.m. on August 22, 2010 to 6 p.m. August 23, 2010.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities because of the relatively short 
amount of time in which the safety zone will be enforced. Vessels may 
still transit through the safety zone with permission from the Captain 
of the Port Buffalo or his on-scene representative.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

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 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 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 (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.

Taking of Private Property

    This rule will not cause 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

    We have 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 create an 
environmental risk to

[[Page 51379]]

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 
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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves the establishment of a safety zone. 
An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

 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. Chapters 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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 temporary section 165.T09-0745 to read as follows:


Sec.  165.T09-0745  Safety Zone; Thunder on Niagara, Niagara River, 
North Tonawanda, NY.

    (a) Location. The following area is a temporary safety zone: all 
waters of the Upper Niagara River, North Tonawanda, NY within two miles 
of the Grand Island Bridge located at 43[deg]03'36'' N, 078[deg]54'45'' 
W to 43[deg]03'09'' N, 078[deg]55'21'' W 43[deg]02'42'' N, 
078[deg]54'09'' W to 43[deg]03'00'' N, 078[deg]53'42'' W, then 
returning to the point of origin. (DATUM:NAD 83).
    (b) Effective Period. This regulation is effective on from 10 a.m. 
on August 22, 2010 to 6 p.m. on August 23, 2010.
    (c) Regulations.
    (1) In accordance with the general regulations in section 165.23 of 
this part, entry into, transiting, or anchoring within an enforced 
safety zone established by this section is prohibited unless authorized 
by the Captain of the Port Buffalo or his on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port Buffalo or his on-scene 
representative.
    (3) The ``on-scene representative'' of the Captain of the Port 
Buffalo is any Coast Guard commissioned, warrant, or petty officer who 
has been designated by the Captain of the Port Buffalo to act on his 
behalf.
    (4) Vessel operators desiring to enter or operate within this 
safety zone shall contact the Captain of the Port Buffalo or his on-
scene representative to obtain permission to do so. The Captain of the 
Port Buffalo or his on-scene representative may be contacted via VHF 
Channel 16. Vessel operators given permission to enter or operate in 
the safety zone must comply with all directions given to them by the 
Captain of the Port Buffalo, or his on-scene representative.

    Dated: August 5, 2010.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2010-20744 Filed 8-19-10; 8:45 am]
BILLING CODE 9110-04-P