[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Rules and Regulations]
[Pages 30195-30197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12315]



[[Page 30195]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0349]
RIN 1625-AA00


Safety Zone; Flagship Niagara Mariners Ball Fireworks, Presque 
Isle Bay, Erie, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on 
Presque Isle Bay, Erie, PA. This zone is intended to restrict vessels 
from a portion of Presque Isle Bay during the Flagship Niagara Mariners 
Ball Fireworks display. This temporary safety zone is necessary to 
protect spectators and vessels from the hazards associated with a 
firework display.

DATES: This rule will be effective from 9:30 p.m. until 11:00 p.m. on 
June 2, 2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket USCG-2012-0349 and are available online 
by going to http://www.regulations.gov, inserting USCG-2012-0349 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 email LT Christopher Mercurio, Chief of 
Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-
843-9343, email [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: 

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. The 
final details for this event were not known to the Coast Guard until 
there was insufficient time remaining before the event to publish an 
NPRM. Thus, delaying the effective date of this rule to wait for a 
comment period to run would be both impracticable and because it would 
inhibit the Coast Guard's ability to protect spectators and vessels 
from the hazards associated with a maritime fireworks display, which 
are discussed further below. 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.

Background and Purpose

    Between 10:00 p.m. and 10:20 p.m. on June 2, 2012, a fireworks 
display will be held on Presque Isle Bay near Erie, PA. The Captain of 
the Port Buffalo has determined that fireworks launched proximate to 
watercraft pose a significant risk to public safety and property. Such 
hazards include premature and accidental detonations, dangerous 
projectiles, and falling or burning debris.

Discussion of Rule

    With the aforementioned hazards in mind, the Captain of the Port 
Buffalo has determined that this temporary safety zone is necessary to 
ensure the safety of spectators and vessels during the Flagship Niagara 
Mariners Ball Fireworks. This zone will be effective and enforced from 
9:30 p.m. until 11:00 p.m. on June 2, 2012. This zone will encompass 
all waters of Presque Isle Bay, Erie, PA within a 420 FT radius of 
position 42[deg]08'22.2'' N and 80[deg]05'15.9'' W (NAD 83).
    Entry into, transiting, or anchoring within the safety zone is 
prohibited unless authorized by the Captain of the Port 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, 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. 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 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 legal or policy issues. The safety zone created by 
this rule will be relatively small and enforced for relatively short 
time. Also, the safety zone is designed to minimize its impact on 
navigable waters. Furthermore, the safety zone has been designed to 
allow vessels to transit around it. Thus, restrictions on vessel 
movement within that particular area are expected to be minimal. Under 
certain conditions, moreover, vessels may still transit through the 
safety zone when permitted by the Captain of the Port.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will 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 temporary final rule may 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 Presque Isle Bay, Erie, 
PA between 9:30 p.m. to 11:00 p.m. on June 2, 2012.
    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 commercial vessel traffic 
area. Vessel traffic can pass safely around the zone.

[[Page 30196]]

Before the effective period, maritime advisories will be issued, which 
include a Broadcast Notice to Mariners.
    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 (Pub. L. 104-121), we offer to assist small 
entities in understanding this 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.
    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 LT Christopher 
Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector 
Buffalo; telephone 716-843-9343, email 
[email protected]. 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 will not create an 
environmental risk to health or risk to safety that might 
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 will 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, because it involves the establishment of a safety 
zone. A final environmental analysis checklist and a preliminary 
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, 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.T09-0349 to read as follows:

[[Page 30197]]

Sec.  165.T09-0349  Safety Zone; Flagship Niagara Mariners Ball, 
Presque Isle Bay, Erie, PA.

    (a) Location. The safety zone will encompass all waters of the 
Presque Isle Bay, Erie, PA within a 420 FT radius of position 
42[deg]08'22.2'' N and 80[deg]05'15.9'' W (NAD 83).
    (b) Effective and Enforcement Period. This regulation will be 
enforced on June 2, 2012, from 9:30 p.m. until 11:00 p.m.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  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 by the Captain of the Port Buffalo to act on his 
behalf.
    (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: May 3, 2012.
S.M. Wischmann,
Captain, U. S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2012-12315 Filed 5-21-12; 8:45 am]
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