[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Rules and Regulations]
[Pages 60901-60903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24582]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0849]
RIN 1625-AA00


Safety Zone; Battle of Queenston Heights Bicentennial, Niagara 
River, Lewiston, 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, Lewiston, NY. This safety zone is intended to restrict 
vessels from a portion of the Lower Niagara River during the Battle of 
Queenston Heights Bicentennial historical reenactment and fireworks 
display. This temporary safety zone is necessary to protect spectators 
and vessels from the hazards associated with a historical reenactment 
and fireworks display.

DATES: This rule will be effective from 6:30 p.m. until 8:00 p.m. on 
October 12, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0849. 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 
temporary rule, call or email LT Christopher Mercurio, Chief of 
Waterways 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

[[Page 60902]]

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 a historical reenactment and 
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 a 30 day notice period to run 
would be impracticable and contrary to the public interest.

B. Basis and Purpose

    Between 7:00 p.m. and 7:30 p.m. on October 12, 2012, a historical 
reenactment will take place in which period cannons will be activated 
from the shoreline with pyrotechnic rockets being used to simulate 
cannonballs being launched several hundred feet over the water. This 
historical reenactment will be held on the Lower Niagara River near the 
Silo Restaurant, Lewiston, NY. The Captain of the Port Buffalo has 
determined that fireworks launched proximate to a gathering of 
watercraft pose a significant risk to public safety and property. Such 
hazards include premature and accidental detonations, dangerous 
projectiles, and falling or burning debris.

C. 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 Battle of 
Queenston Heights Bicentennial historical reenactment and fireworks 
display. This zone will be effective and enforced from 6:30 p.m. until 
8:00 p.m. on October 12, 2012. This zone will encompass all waters of 
the Niagara River, Lewiston, NY starting from position 43[deg]10'28.2'' 
N and 79[deg]02'58.6'' W then South to 43[deg]10'22.9'' N and 
79[deg]02'58.9'' W then West to 43[deg]10'23.2'' N and 79[deg]03'05.0'' 
W then North to 43[deg]10'28.5'' N and 79[deg]03'05.0'' W then 
returning to the point of origin to form a square (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.

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 or 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 that Order. 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 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 on the evening of 
October 12, 2012.
    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 enforced for only 90 minutes late in the day. 
Traffic will be allowed to pass through the zone with the permission of 
the Captain of the Port. The Captain of the Port can be reached via VHF 
channel 16. Before the activation of the zone, we would issue local 
Broadcast Notice to Mariners.

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).

[[Page 60903]]

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 
INFORMATION 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 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. An 
environmental analysis checklist supporting this determination 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 
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.T09-0849 to read as follows:


Sec.  165.T09-0849  Safety Zone; Battle of Queenston Heights 
Bicentennial, Niagara River, Lewiston, NY.

    (a) Location. The safety zone will encompass all waters of the 
Niagara River, Lewiston, NY starting from position 43[deg]10'28.2'' N 
and 79[deg]02'58.6'' W then South to 43[deg]10'22.9'' N and 
79[deg]02'58.9'' W then West to 43[deg]10'23.2'' N and 79[deg]03'05.0'' 
W then North to 43[deg]10'28.5'' N and 79[deg]03'05.0'' W then 
returning to the point of origin to form a square (NAD 83).
    (b) Effective and enforcement period. This regulation is effective 
and will be enforced on October 12, 2012 from 6:30 p.m. until 8:00 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: September 19, 2012.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port, Sector Buffalo.
[FR Doc. 2012-24582 Filed 10-4-12; 8:45 am]
BILLING CODE 9110-04-P