[Federal Register Volume 76, Number 170 (Thursday, September 1, 2011)]
[Rules and Regulations]
[Pages 54377-54380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22356]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0795]
RIN 1625-AA00


Safety Zone; Cleveland National Air Show, Lake Erie, Cleveland, 
OH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on 
Lake Erie, Cleveland, OH. This zone is intended to restrict vessels 
from a portion of Lake Erie during the Cleveland National Air Show. 
This safety zone is necessary to protect persons and vessels from the 
potential safety hazards associated with high speed, low altitude 
acrobatic and military aircraft.

DATES: This rule is effective from 7:30 a.m. to 6:30 p.m. daily 
starting on September 1, 2011 through September 5, 2011.

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-2011-0795 and are available online by going to 
http://www.regulations.gov, inserting USCG-2011-0795 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-2011-0795 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0795 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 Chris F. Mercurio, Waterways 
Management Division Chief, U.S. Coast Guard Sector

[[Page 54378]]

Buffalo, at Coast Guard; telephone 716-843-9343, 
[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 notice of proposed rulemaking (NPRM) 
with respect to this rule because doing so would be impracticable and 
contrary to the public interest of ensuring the safety of spectators 
and vessels during this event and immediate action is necessary to 
prevent possible loss of life or property due to the hazards associated 
with an air show.
    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. For the same reasons discussed in 
the preceding paragraph, waiting for 30 day notice period run would be 
impracticable and contrary to the public interest of ensuring the 
safety of spectators and vessels during this event and immediate action 
is necessary to prevent possible loss of life or property.

Background and Purpose

    This temporary safety zone is necessary to ensure the safety of 
vessels from the potential safety hazards associated with high speed, 
low altitude acrobatic and military aircraft. Further, 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

    The Coast Guard is establishing a temporary safety zone for the 
Cleveland National Air Show. The safety zone will encompass all waters 
of Lake Erie and Cleveland Harbor (near Burke Lakefront Airport) 
bounded by a line drawn from position 41[deg]30.34[min] N, 
081[deg]42.33[min] W; to 41[deg]30.84[min] N, 081[deg]42.82[min] W; 
then to 41[deg]32.15[min] N, 081[deg]39.82[min] W; then to 
41[deg]31.88[min] N, 081[deg]39.40[min] W; then east to 
41[deg]31.71[min] N, 081[deg]39.76[min] W; and then back to the point 
of origin. The event sponsor will establish marker buoys to outline the 
safety zone at regular intervals to assist vessels in recognizing this 
area as a safety zone during the times of enforcement. These 
coordinates are based upon North American Datum 1983 (NAD 83).
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port or the on-scene representative. Entry 
into, transiting, or anchoring within the safety zone is prohibited 
unless authorized by the Captain of the Port Sector Buffalo or his 
designated on-scene representative. The Captain of the Port or his 
designated 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, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of that Executive Order 12866 
or under section 1 of Executive Order 13563. The Office of Management 
and Budget has not reviewed it under those Orders. It is not 
``significant'' under the regulatory policies and procedures of the 
Department of Homeland Security (DHS). We conclude that this rule is 
not a significant regulatory action because we anticipate that during 
the short time this zone will be in effect, it will have minimal impact 
on the economy, will not interfere with other agencies, will not 
adversely alter the budget of any grant or loan recipients, and will 
not raise any novel or legal policy issue.

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 the affected portion of the Lake Erie and 
Cleveland Harbor from 7:30 a.m. to 6:30 p.m. daily on September 1 
through September 5, 2011.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
safety zone will be in enforced only part of each day of the effective 
period and vessel traffic can safely pass around the safety zone during 
the event. In the event that this temporary safety zone affects 
shipping, commercial vessels may request permission from the Captain of 
the Port Buffalo to transit through the safety zone. The Coast Guard 
will give notice to the public via a Broadcast to Mariners that the 
regulation is in effect.

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

[[Page 54379]]

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 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 health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    The Coast Guard recognizes the treaty rights of Native American 
Tribes. Moreover, the Coast Guard is committed to working with Tribal 
Governments to implement local policies and to mitigate tribal 
concerns. We have determined that this rule and fishing rights 
protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes 
that have questions concerning the provisions of this rule or options 
for compliance are encouraged to contact the point of contact listed 
under FOR FURTHER INFORMATION CONTACT.

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 
temporary safety zone, ships can safely pass around the zone, and the 
zone will be enforced only part of each day during the effective 
period. Therefore this rule is categorically excluded under paragraph 
34(g) of the Instruction.
    A final environmental analysis check list and 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. Chapters 701, 3306, 3703; 
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.T09-0795 to read as follows:


Sec.  165.T09-0795  Safety Zone; Cleveland National Air Show, Lake 
Erie, Cleveland, OH.

    (a) Location. All waters of Lake Erie and Cleveland Harbor (near 
Burke Lakefront Airport) bounded by a line drawn from position 
41[deg]30.34' N, 081[deg]42.33' W; to 41[deg]30.84' N, 081[deg]42.82' 
W; then to 41[deg]32.15' N, 081[deg]39.82' W; then to 41[deg]31.88' N, 
081[deg]39.40' W; then east to 41[deg]31.71' N, 081[deg]39.76' W; and 
then back to the point of origin. These coordinates are based upon 
North American Datum 1983 (NAD 83).
    (b) Effective and Enforcement Period: This rule is effective from 
7:30 a.m. to 6:30 p.m. daily on September 1, 2011 through September 5, 
2011. The event sponsor will establish marker buoys to outline the 
safety zone at regular intervals to assist vessels in recognizing this 
area as a safety zone during the times of enforcement.
    (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 his designated 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 designated 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

[[Page 54380]]

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 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 18, 2011.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2011-22356 Filed 8-31-11; 8:45 am]
BILLING CODE 9110-04-P