[Federal Register Volume 82, Number 90 (Thursday, May 11, 2017)]
[Proposed Rules]
[Pages 21958-21960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09563]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0331]
RIN 1625-AA00


Safety Zone; Thunder on the Outer Harbor; Buffalo Outer Harbor, 
Buffalo, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
for certain waters of the Buffalo Outer Harbor during the Thunder on 
the Outer Harbor boat races. This proposed rulemaking would prohibit 
persons and vessels from being in the safety zone unless authorized by 
the Captain of the Port Buffalo or a designated representative. We 
invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 16, 2017.

ADDRESSES: You may submit comments identified by docket number USCG-
2017-0331 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email LT Michael Collet, Chief of 
Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-
843-9343, email [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 21959]]

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    United States Coast Guard Sector Buffalo was notified by Niagara 
Frontier Antique and Classic Boats along with BR Guest Inc. that there 
would be a boat race held on July 22 and 23, 2017 from 10:00 a.m. to 
4:00 p.m. on the Buffalo Outer Harbor. Hazards from the boat race 
include high speed vessels. The Captain of the Port Buffalo (COTP) has 
determined that potential hazards associated with the Thunder on the 
Outer Harbor boat race would be a safety concern for anyone within the 
designated course encompassed by all waters of the Outer Harbor, 
Buffalo, NY starting at position 42[deg]52'21'' N. and 078[deg]53'14'' 
W. then West to 42[deg]52'15'' N. and 078[deg]53'32'' W. then South to 
42[deg]51'41'' N. and 078[deg]53'02'' W. then East to 42[deg]51'46'' N. 
and 078[deg]52'45'' W. (NAD 83) then returning to the point of origin.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within the above stated points before, during, 
and after the scheduled event. The Coast Guard proposes this rulemaking 
under authority in 33 U.S.C. 1231.

III. Discussion of Proposed Rule

    The COTP proposes to establish a temporary safety zone, enforced 
intermittently, from 9:45 a.m. to 4:15 p.m. on July 22 and 23, 2017. 
The safety zone will encompass all waters of the Outer Harbor, Buffalo, 
NY starting at position 42[deg]52'21'' N. and 078[deg]53'14'' W. then 
West to 42[deg]52'15'' N. and 078[deg]53'32'' W. then South to 
42[deg]51'41'' N. and 078[deg]53'02'' W. then East to 42[deg]51'46'' N. 
and 078[deg]52'45'' W. (NAD 83) then returning to the point of origin. 
The duration of the zone is intended to ensure the safety of vessels 
and these navigable waters before, during, and after the scheduled 
10:00 a.m. to 4:00 p.m. boat races. No vessel or person would be 
permitted to enter the safety zone without obtaining permission from 
the COTP or a designated representative. The regulatory text we are 
proposing appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and Executive orders related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and Executive orders and 
we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. Executive Order 13771 (``Reducing 
Regulation and Controlling Regulatory Costs''), directs agencies to 
reduce regulation and control regulatory costs and provides that ``for 
every one new regulation issued, at least two prior regulations be 
identified for elimination, and that the cost of planned regulations be 
prudently managed and controlled through a budgeting process.''
    This NPRM has not been designated a ``significant regulatory 
action,'' under Executive Order 12866. Accordingly, the NPRM has not 
been reviewed by the Office of Management and Budget.
    As this rule is not a significant regulatory action, this rule is 
exempt from the requirements of Executive Order 13771. See OMB's 
Memorandum titled ``Interim Guidance Implementing Section 2 of the 
Executive Order of January 30, 2017 titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (February 2, 2017).
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. Vessel traffic 
would be able to safely transit around this safety zone, which would 
impact a small designated area of the Buffalo Outer Harbor, by 
transiting a short distance in Lake Erie. The safety zone would also 
have built in times where vessels will be able to transit though 
between race heats. Moreover, the Coast Guard would issue a Broadcast 
Notice to Mariners via VHF-FM marine channel 16 about the zone, and the 
rule would allow vessels to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
IV.A above this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    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.
    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 proposed 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

    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 proposed rule under that Order and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, this proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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.

[[Page 21960]]

If you believe this proposed rule has implications for federalism or 
Indian tribes, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

E. 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 (42 U.S.C. 4321-4370f), and have made 
a preliminary determination 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 proposed rule involves an 
intermittently enforced safety zone lasting 6.5 hours per day that 
would prohibit entry into the boundaries created by points starting at 
position 42[deg]52'21'' N. and 078[deg]53'14'' W. then West to 
42[deg]52'15'' N. and 078[deg]53'32'' W. then South to 42[deg]51'41'' 
N. and 078[deg]53'02'' W. then East to 42[deg]51'46'' N. and 
078[deg]52'45'' W. (NAD 83) then returning to the point of origin. 
Normally such actions are categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of Commandant Instruction 
M16475.lD. A preliminary Record of Environmental Consideration (REC) 
supporting this determination is available in the docket where 
indicated under the ADDRESSES section of this preamble. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

G. 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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: Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 
1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.T09-0331 to read as follows:

Sec.  165.T09-0331  Safety Zone; Thunder on the Outer Harbor; Buffalo 
Outer Harbor, Buffalo, NY.

    (a) Location. The safety zone will encompass all waters of the 
Outer Harbor, Buffalo, NY starting at position 42[deg]52'21'' N. and 
078[deg]53'14'' W. then West to 42[deg]52'15'' N. and 078[deg]53'32'' 
W. then South to 42[deg]51'41'' N. and 078[deg]53'02'' W. then East to 
42[deg]51'46'' N. and 078[deg]52'45'' W. (NAD 83) then returning to the 
point of origin.
    (b) Enforcement Period. This rule is effective from 9:45 a.m. until 
4:15 p.m. on July 22, 2017, and from 9:45 a.m. until 4:15 p.m. on July 
23, 2017.
    (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 must 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 2, 2017.
J.S. DuFresne,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2017-09563 Filed 5-10-17; 8:45 am]
 BILLING CODE 9110-04-P