[Federal Register Volume 83, Number 182 (Wednesday, September 19, 2018)]
[Rules and Regulations]
[Pages 47293-47295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20291]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0859]
RIN 1625-AA00


Safety Zone; Snowbirds Over Fort Erie, Lake Erie, Niagara River, 
Buffalo, NY

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 the Niagara River, Buffalo, NY. This safety zone is 
intended to restrict vessels from a portion of Lake Erie and the 
Niagara River during the Snowbirds over Fort Erie air show on September 
19, 2018. This temporary safety zone is necessary to protect 
participants, spectators, and vessels from the hazards associated with 
aerial stunts, low flying aircraft, and aircraft maneuvers. Entry of 
vessels or persons into this zone is prohibited unless specifically 
authorized by the Captain of the Port Buffalo (COTP).

DATES: This rule is effective from 3:30 p.m. to 5:30 p.m. on September 
19, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0859 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 LTJG Sean Dolan, Chief Waterways Management Division, 
U.S. Coast Guard; 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

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 due to it being impracticable and contrary to 
public interest. The final details of this event were not known to the 
Coast Guard until there was insufficient time remaining before the 
event to publish a NPRM.
    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. Delaying the effective date would 
be contrary to the rule's objectives of enhancing safety of life on the 
navigable waters and protection of persons and vessels in vicinity of 
the Snowbirds over Fort Erie air show.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Buffalo (COTP) has determined that 
potential hazards associated with an air show over a navigable waterway 
pose a significant risk to public safety and property within the 
immediate location of the show.

IV. Discussion of the Rule

    This rule establishes a safety zone on September 19, 2018, from 
3:30 p.m. until 5:30 p.m. The safety zone will encompass all waters of 
Lake Erie and the Niagara River starting at position 42[deg]54'01.25'' 
N, 78[deg]54'21.07'' W, then East to 42[deg]54'01.20'' N, 
78[deg]54'17.35'' W, then South to 42[deg]53'18.18'' N, 
78[deg]54'21.94'' W, then West to 42[deg]53'18.39'' N, 
78[deg]54'43.64'' W, and then North along the international boundary 
line to the point of origin. The duration of the zone is intended to 
ensure the safety of spectators and vessels during the Snowbirds over 
Fort Erie air show. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP 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, 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

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approaches that maximize net benefits. Executive Order 13771 directs 
agencies to control regulatory costs through a budgeting process. This 
rule has not been designated a ``significant regulatory action,'' under 
Executive Order 12866. Accordingly, this rule has not been reviewed by 
the Office of Management and Budget (OMB), and pursuant to OMB guidance 
it is exempt from the requirements of Executive Order 13771.
    This regulatory action determination is based on the conclusion 
that this rule is not a significant regulatory action. 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 a relatively short time. Also, 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.

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 rule 
will 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 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
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 above.

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 an 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 
Directive 023-01 and Commandant Instruction M16475.1D, 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 
establishes a safety zone. It is categorically excluded from further 
review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration 
supporting this determination is available in the docket where 
indicated under ADDRESSES.

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. Add Sec.  165.T09-0859 to read as follows:


Sec.  165.T09-0859  Safety Zone; Snowbirds over Fort Erie, Lake Erie, 
Niagara River, Buffalo, NY.

    (a) Location. The safety zone will encompass all waters of Lake 
Erie and the Niagara River starting at position 42[deg]54'01.25'' N, 
78[deg]54'21.07'' W, then East to 42[deg]54'01.20'' N, 
78[deg]54'17.35'' W, then South to 42[deg]53'18.18'' N, 
78[deg]54'21.94'' W, then West to 42[deg]53'18.39'' N, 
78[deg]54'43.64'' W, and

[[Page 47295]]

then North along the international boundary line to the point of 
origin.
    (b) Enforcement period. This regulation will be enforced from 3:30 
p.m. until 5:30 p.m. on September 19, 2018.
    (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: September 13, 2018.
Joseph S. Dufresne,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2018-20291 Filed 9-18-18; 8:45 am]
 BILLING CODE 9110-04-P