[Federal Register Volume 84, Number 126 (Monday, July 1, 2019)]
[Rules and Regulations]
[Pages 31200-31202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13949]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0465]
RIN 1625-AA00


Safety Zone; Canalside 4th of July, Lake Erie, Buffalo, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 560-foot radius of the launch site located 
near the Buffalo Outer Harbor, Buffalo, NY. This safety zone is 
intended to restrict vessels from portions of the Buffalo

[[Page 31201]]

Outer Harbor and Lake Erie during the Canalside 4th of July fireworks 
display. The safety zone is necessary to protect mariners and vessels 
from potential hazards associated with a fireworks display. Entry of 
vessels or persons into this zone is prohibited unless specifically 
authorized by the Captain of the Port Buffalo or a designated 
representative.

DATES: This rule is effective from 10 p.m. on July 4, 2019 through 
10:30 p.m. on July 5, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0465 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 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 because the event sponsor did not submit 
notice to the Coast Guard with sufficient time remaining before the 
event to publish an NPRM. Delaying the effective date of this rule to 
wait for a comment period to run would be impracticable and contrary to 
the public interest by inhibiting the Coast Guard's ability to protect 
spectators and vessels from the hazards associated with a fireworks 
display.
    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.

III. Legal Authority and Need for Rule

    The legal basis for the rule is the Coast Guard's authority to 
establish safety zones under 46 U.S.C. 70034 (previously 33 U.S.C. 
1231), 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Department of 
Homeland Security Delegation No. 0170.1.
    The Captain of the Port Buffalo (COTP) has determined that a 
fireworks display presents significant risks to the public safety and 
property. Such hazards include premature and accidental detonations, 
dangerous projectiles, and falling or burning debris. This rule is 
needed to protect personnel, vessels, and the marine environment in the 
navigable waters within the safety zone prior to, during, and 
immediately after the fireworks display.

IV. Discussion of the Rule

    This rule establishes a safety zone from 10 p.m. through 10:30 p.m. 
on July 4, 2019. In the case of inclement weather on July 4, the safety 
zone will be enforced at the same times on July 5, 2019. The safety 
zone will cover all navigable waters of Lake Erie at the Buffalo Outer 
Harbor, Buffalo, NY contained within a 560-foot radius of: 
42[deg]52'07.93'' N, 078[deg]53'01.86'' W.
    The duration of the zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters while the 
fireworks event takes place. Entry into, transiting, or anchoring 
within the safety zone is prohibited unless authorized by 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 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 COTP.

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

[[Page 31202]]

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 Environmental Planning COMDTINST 5090.1 (series), 
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 temporary safety zone lasting only 
a half hour that will prohibit entry within the established safety zone 
for the fireworks display. It is categorically excluded from further 
review under paragraph L[60](a) in Table 3-1 of U.S. Coast Guard 
Environmental Planning Implementing Procedures 5090.1. 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:  46 U.S.C. 70034, 70051; 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.T09-0465 to read as follows:


Sec.  165.T09-0465  Safety Zone; Canalside 4th of July, Lake Erie, 
Buffalo, NY.

    (a) Location. The safety zone will encompass all waters of Lake 
Erie at the Buffalo Outer Harbor; Buffalo, NY contained within a 560-
foot radius of: 42[deg]52'07.93'' N, 078[deg]53'01.86'' W.
    (b) Enforcement period. The regulation in this section will be 
enforced from 10 p.m. through 10:30 p.m. on July 4, 2019. In the case 
of inclement weather on July 4, the safety zone will be enforced at the 
same times on July 5, 2019.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting, or anchoring within this safety 
zone is prohibited unless authorized by the Captain of the Port Buffalo 
or a 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 or her 
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 or 
her behalf.
    (4) Vessel operators desiring to enter or operate within the safety 
zone must contact the Captain of the Port Buffalo or his or her on-
scene representative to obtain permission to do so. The Captain of the 
Port Buffalo or his or her on-scene representative may be contacted via 
VHF Channel 16 or alternatively they may contact the Captain of the 
Port Buffalo via landline at 716-843-9525. 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 or 
her on-scene representative.

    Dated: June 25, 2019.
Joseph S. Dufresne,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2019-13949 Filed 6-28-19; 8:45 am]
 BILLING CODE 9110-04-P