[Federal Register Volume 77, Number 170 (Friday, August 31, 2012)]
[Rules and Regulations]
[Pages 53142-53144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21532]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0814]
RIN 1625-AA00


Safety Zone; Cleveland National Air Show, 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 and Cleveland Harbor at Burke Lakefront Airport, Cleveland, 
OH. This safety zone is intended to restrict vessels from a portion of 
Lake Erie and Cleveland Harbor (near Burke Lakefront Airport). This 
temporary safety zone is necessary to protect participants, spectators, 
and vessels from the hazards associated with aerial insertions and 
aircraft maneuvers.

DATES: This rule is effective from 11:30 a.m. on August 30, 2012, until 
6:00 p.m. on September 3, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2012-0814]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' You may visit 
the Docket Management Facility, 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 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:

Table of Acronyms

    DHS Department of Homeland Security
    FR Federal Register
    NPRM Notice of Proposed Rulemaking

A. Regulatory History and 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. 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 contrary to the public interest because it 
would inhibit the Coast Guard's ability to protect spectators and 
vessels from the hazards associated with aerial insertions and aircraft 
maneuvering, 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 a 30 day notice period to run 
would be impracticable and contrary to the public interest.

B. Basis and Purpose

    The Cleveland National Air Show has been taking place annually 
since 1964. During the 2012 show, as with shows in the past, there will 
be various high speed aerial and military tactical demonstrations on 
and over Burke Lakefront to include various maneuvers by U.S. Navy Blue 
Angels and civilian aircraft and by personnel on the Burke

[[Page 53143]]

Lakefront Airport grounds. Specifically, this year's aerial and 
military tactical demonstrations will take place between 11:30 a.m. to 
4:30 p.m. on August 30, 2012, 10:00 a.m. to 4:30 p.m. on August 31, 
2012, and 8:00 a.m. to 6:00 p.m. on September 1, 2012 through September 
3, 2012. A heavy amount of recreational boating traffic is expected for 
these demonstrations. The Captain of the Port Buffalo has determined 
that the maneuvers combined with a high concentration of recreational 
vessels will create significant risks for the boating public.

C. Discussion of Final Rule

    With the aforementioned risks in mind, the Captain of the Port 
Buffalo has determined that this temporary safety zone is necessary to 
ensure the safety of participants and the boating public during the 
Marine Event. This safety zone will be effective from 11:30 a.m. on 
August 30, 2012 until 6:00 p.m. on September 3, 2012. It will only be 
enforced, however, from 11:30 a.m. to 4:30 p.m. on August 30, 2012, 
10:00 a.m. to 4:30 p.m. on August 31, 2012, and 8:00 a.m. to 6:00 p.m. 
on September 1 through 3, 2012.
    The safety zone will encompass a portion of Lake Erie and Cleveland 
Harbor near Burke Lakefront Airport from position 41[deg]30'20'' N and 
081[deg]42'20'' W to 41[deg]30'50'' N and 081[deg]42'49'' W, to 
41[deg]32'09'' N and 081[deg]39'49'' W, to 41[deg]31'53'' N and 
081[deg]39'24'' W, then return to the original position (NAD 83).
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port or the designated on scene Patrol 
Commander (PATCOM). 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. Only state, federal, 
and local vessels will be allowed in the safety zone. The Captain of 
the Port or his designated on-scene representative may be contacted via 
VHF Channel 16.

D. 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 and executive orders.

1. 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 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 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.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking.
    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 might be small entities: The owners of operators of vessels 
intending to transit or anchor in a portion of Lake Erie and Cleveland 
Harbor from 11:30 a.m. to 4:30 p.m. on August 30, 2012, 10:00 a.m. to 
4:30 p.m. on August 31, 2012, and 8:00 a.m. to 6:00 p.m. on September 1 
through 3, 2012.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule will be in effect for approximately ten hours each day in an area 
with low commercial vessel traffic. Also, 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. Additionally, the Coast Guard will give advanced notice to 
the public via a local Broadcast Notice to Mariners that the regulation 
is in effect. Moreover, the COTP will suspend enforcement of the safety 
zone if the event for which the zone is established ends earlier than 
the expected time.

3. 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 rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section, above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INTFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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

[[Page 53144]]

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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. 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 determined 
that 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 involves the establishment of a safety zone, and 
therefore, it is categorically excluded from further review under 
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A final 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR parts 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.T09-0814 to read as follows:


Sec.  165.T09-0814  Safety Zone; Cleveland National Air Show, 
Cleveland, OH.

    (a) Location. The safety zone will encompass a portion of Lake Erie 
and Cleveland Harbor near Burke Lakefront Airport from position 
41[deg]30'20'' N and 081[deg]42'20'' W to 41[deg]30'50'' N and 
081[deg]42'49'' W, to 41[deg]32'09'' N and 081[deg]39'49'' W, to 
41[deg]31'53'' N and 081[deg]39'24'' W, then return to the original 
position (NAD 83).
    (b) Enforcement Period. This regulation will be enforced from 11:30 
a.m. to 4:30 p.m. on August 30, 2012, 10:00 a.m. to 4:30 p.m. on August 
31, 2012, and 8:00 a.m. to 6:00 p.m. on September 1 through 3, 2012.
    (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 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: August 22, 2012.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2012-21532 Filed 8-30-12; 8:45 am]
BILLING CODE 9110-04-P