[Federal Register Volume 76, Number 71 (Wednesday, April 13, 2011)]
[Rules and Regulations]
[Pages 20532-20534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8884]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0131
RIN 1625-AA00


Safety Zone; Boom Days, Niagara River, Niagara Falls, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Niagara River, Niagara Falls, NY for the Boom Days Fireworks. This zone 
is intended to restrict vessels from La Salle Marina and a portion of 
the Niagara River, Niagara Falls, NY during the Boom Days Fireworks on 
April 16, 2011. This temporary safety zone is necessary to protect 
spectators and vessels from the hazards associated with a firework 
display.

DATES: This rule is effective on April 16, 2011 from 8 p.m. through 
9:30 p.m.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket USCG-2011-0131 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0131 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail MST3 Rory Boyle, Marine Events 
Coordinator, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, 
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

[[Page 20533]]

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 notice of proposed rulemaking (NPRM) with respect 
to this rule because awaiting a comment period to run would be 
impractical and contrary to the public interest in that it would 
prevent the Captain of the Port Buffalo from performing the function of 
keeping the boating public safe from the hazards associated with a 
maritime fireworks display.
    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, awaiting a 30 day effective 
period to run is impracticable and contrary to the public interest in 
that it would prevent the Captain of the Port Buffalo from protecting 
persons and vessels involved in and observing the event.

Background and Purpose

    This temporary safety zone is necessary to ensure the safety of 
vessels and spectators from hazards associated with a fireworks 
display. The Captain of the Port Buffalo has determined that fireworks 
launched proximate to watercraft pose a significant risk to public 
safety and property. Boom Days is an event established to celebrate the 
removal of the ice boom in Lake Erie and the beginning of spring. 
Establishing a safety zone to control vessel movement around the 
location of the launch platform will help ensure the safety of persons 
and property at these events and help minimize the associated risks.

Discussion of Rule

    A temporary safety zone is necessary to ensure the safety of 
spectators and vessels during the setup, loading, and launching of a 
fireworks display in conjunction with the Boom Days Fireworks. The 
fireworks display will occur on April 16, 2011 from 8:30 p.m. through 9 
p.m. The safety zone will encompass all waters of La Salle Marina and 
part of the Niagara River, Niagara Falls, NY within a 210 foot radius 
from position 43[deg]4'24.02'' N, 78[deg]59'9.18'' W (NAD 83).
    All persons and vessels must comply with the instructions of the 
Coast Guard Captain of the Port or the designated on-scene 
representative. Entry into, transiting, or anchoring within the safety 
zone is prohibited unless authorized by the Captain of the Port Buffalo 
or on-scene representative. The Captain of the Port Buffalo or on-scene 
representative may be contacted via VHF Channel 16.

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 of the minimal time that the area will be 
restricted. Vessels may still transit with the permission of the 
Captain of the Port Buffalo or designated on-scene representative. The 
Coast Guard expects this area will have an 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 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 may be 
small entities: The owners or operators of vessels intending to transit 
or anchor in a portion of the Niagara River, Niagara Falls, NY on April 
16, 2011 from 8 p.m. until 9:30 p.m.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities because of the minimal amount of 
time in which the safety zone will be enforced. This safety zone will 
only be enforced for 90 minutes in a low vessel traffic area. Vessel 
traffic can pass safely around the zone. Before the effective period, 
we will issue maritime advisories, which include a Broadcast Notice to 
Mariners.

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.

[[Page 20534]]

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 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 which 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.

    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. 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; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T09-0131 to read as follows:


Sec.  165.T09-0131  Safety zone; Boom Days Fireworks, Niagara River, 
Niagara Falls, NY.

    (a) Location. The safety zone will encompass all U.S. navigable 
waters of the Niagara River, Niagara Falls, NY, within a 210 foot 
radius from position 43[deg]4'24.02'' N 78[deg]59'9.18'' W (NAD 83).
    (b) Effective period. This regulation will be effective and the 
safety zone enforced from 8:00 p.m. until 9:30 p.m. on April 16, 2011.
    (c) Regulations. (1) In accordance with the general regulations in 
section 165.23 of this part, entry into, transiting, or anchoring 
within this safety zone is prohibited unless authorized by the Captain 
of the Port Buffalo, or 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 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 to act on his behalf. 
The on-scene representative of the Captain of the Port Buffalo will be 
aboard either a Coast Guard or Coast Guard Auxiliary vessel.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port Buffalo or on-scene 
representative to obtain permission to do so. The Captain of the Port 
Buffalo or on-scene representative may be contacted via VHF Channel 16.
    (5) 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 on-scene representative.

    Dated: March 28, 2011.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2011-8884 Filed 4-12-11; 8:45 am]
BILLING CODE 9110-04-P