[Federal Register Volume 82, Number 98 (Tuesday, May 23, 2017)]
[Rules and Regulations]
[Pages 23514-23516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10469]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0492]
RIN 1625-AA00


Safety Zone; Lower Niagara River at Niagara Falls, New York

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone within 
the Captain of the Port Zone Buffalo on the Lower Niagara River, 
Niagara Falls, NY. This rule is intended to restrict vessels from a 
portion of the Lower Niagara River considered not navigable as listed 
in the United States Coast Pilot Book 6--Great Lakes: Lake Ontario, 
Erie, Huron, Michigan, and Superior and St. Lawrence River and more 
specifically as described below. The safety zone to be established by 
this rule is necessary to protect the public and vessels from the 
hazards associated with the heavy rapids in the narrow waterway of the 
Lower Niagara River.

DATES: This rule is effective June 22, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2015-0492 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Michael Collet, Chief of Waterways Management, U.S. 
Coast Guard Sector Buffalo; telephone 716-843-9322, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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

[[Page 23515]]

II. Background Information and Regulatory History

    On June 21, 2016, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Safety Zone; Lower Niagara River at Niagara 
Falls, New York'' (81 FR 40226). There we issued the NPRM and invited 
comments on our proposed regulatory action related to this permanent 
safety zone. During the 90 day comment period that ended September 19, 
2016, we received five comments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Coast Guard has already established a permanent safety zone 
in the Upper Niagara River per 33 CFR 165.902(a) in order to protect 
the boating public from the dangers of the waters above and at the 
Niagara Falls. These waters include the United States waters of the 
Niagara River from the crest of the American and Horseshoe Falls, New 
York to a line drawn across the Niagara River from the downstream side 
of the mouth of Gill Creek to the upstream end of the breakwater at the 
mouth of the Welland River.
    The heavy rapids in the section of the Lower Niagara River 
downstream of Niagara Falls have not historically been regularly 
navigated by vessels. In early 2014, the Captain of the Port Zone 
Buffalo received reports of vessels transiting this section of the 
Niagara River. These reports prompted further evaluation of the safety 
of the entire waterway by federal, state, and local agencies. The 
purpose of the evaluation was to determine what, if any, rescue 
capability exists that would be able to respond to vessels and/or 
passengers in distress in the heavy rapids of the river south of the 
whirlpool rapids to the International Railroad Bridge.
    The Captain of the Port Buffalo (COTP) has determined that no 
feasible rescue capability exists for vessels in distress or persons in 
the water in the heavy rapids south of the whirlpool rapids to the 
International Railroad Bridge.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received five comments on our NPRM published 
June 21, 2016. All five comments were generally supportive of the 
proposed safety zone with no objections or recommendations. There are 
no changes in the regulatory text of this rule from the language 
proposed in the NPRM.
    This rule establishes a permanent safety zone to include the 
following waters: All United States waters of the Lower Niagara River, 
Niagara Falls, NY from a straight line drawn from position 
43[deg]07'10.70'' N., 079[deg]04'02.32'' W. (NAD 83) and 
43[deg]07'09.41'' N., 079[deg]4'05.41'' W. (NAD 83) just south of the 
whirlpool rapids from the east side of the river to the international 
border of the United States, to a straight line drawn from position 
43[deg]06'34.01'' N., 079[deg]03'28.04'' W. (NAD 83) and 
43[deg]06'33.52'' N., 079[deg]03'30.42'' W. (NAD 83) at the 
International Railroad Bridge. Entry into, transiting, or anchoring 
within the safety zone is prohibited unless authorized by the Captain 
of the Port Zone Buffalo or a designated representative.

V. Regulatory Analyses

    We developed this 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.

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. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    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 is designed to minimize its impact on navigable 
waters.

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 received no comments from the Small Business 
Administration on this 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 may affect the following entities, most of which are 
small entities: The owners or operators of vessels intending to transit 
in the portion of American waters at the whirlpool rapids. This safety 
zone will not have a significant economic impact on a substantial 
number of small entities for the following reasons: There have not been 
a substantial number of small entities attempting to transit this 
section of the river.
    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.
    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.

C. 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).

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 rule under that Order and have 
determined that it is consistent with the fundamental federalism

[[Page 23516]]

principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this 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 rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

F. 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 (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 permanent safety zone in a small 
section of the Lower Niagara River. 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.

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.

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; 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. In Sec.  165.902, revise the section heading and add paragraph (b) 
to read as follows:


Sec.  165.902  Safety Zone; Lower Niagara River at Niagara Falls, New 
York.

* * * * *
    (b) The following is a safety zone--The United States waters of the 
Lower Niagara River, Niagara Falls, NY from a straight line drawn from 
position 43[deg]07'10.70'' N., 079[deg]04'02.32'' W. (NAD 83) and 
43[deg]07'09.41'' N., 079[deg]04'05.41'' W. (NAD 83) just south of the 
whirlpool rapids from the east side of the river to the international 
border of the United States, to a straight line drawn from position 
43[deg]06'34.01'' N., 079[deg]03'28.04'' W. (NAD 83) and 
43[deg]06'33.52'' N., 079[deg]03'30.42'' W. (NAD 83) at the 
International Railroad Bridge.

    Dated: April 20, 2017.
J.S. Dufresne,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2017-10469 Filed 5-22-17; 8:45 am]
 BILLING CODE 9110-04-P