[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Rules and Regulations]
[Pages 38987-38989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14005]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0535]
RIN 1625-AA00


Safety Zone; Waterway, Tonawanda, 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 280-foot radius of bridge launched fireworks 
over Ellicott River in Tonawanda, NY. The safety zone is necessary to 
protect personnel, vessels, and the marine environment from potential 
hazards created by a fireworks display. Entry of vessels or persons 
into this safety zone is prohibited unless specifically authorized by 
the Captain of the Port Buffalo or his designated representative.

DATES: This rule is effective from 9:45 p.m. through 10:30 p.m. on July 
4, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0535 in the ``SEARCH'' box and click ``SEARCH.'' Next, in the 
Document Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email MST1 Anthony Urbana, Sector Buffalo, U.S. Coast Guard; 
telephone 716-843-9342, 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

[[Page 38988]]

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 doing so would be impracticable. The 
event sponsor did not submit notice of the fireworks display to the 
Coast Guard with sufficient time remaining before the event to publish 
an NPRM. This safety zone must be established by July 04, 2022 in order 
to protect spectators and vessels from the hazards associated with this 
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 because we must establish this safety zone by 
July 04, 2022.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Buffalo 
(COTP) has determined that fireworks over the water presents 
significant risks to public safety and property within a 280-foot 
radius of the launch point. This rule is necessary to protect 
personnel, vessels, and the marine environment in the navigable waters 
within the safety zone while the fireworks display is taking place.

IV. Discussion of the Rule

    This rule establishes a safety zone from 9:45 p.m. through 10:30 
p.m. on July 4, 2022. The safety zone will cover all navigable waters 
within a 280-foot radius of bridge launched fireworks over Ellicott 
River in Tonawanda, NY. The duration of the safety zone is intended to 
protect spectators, vessels, and the marine environment in these 
navigable waters during the fireworks display. No vessel or person will 
be permitted to enter the safety zone without obtaining permission from 
the COTP Buffalo or his 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. 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).
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. The safety zone 
will encompass a 280-foot radius from the bridge launched fireworks 
over Ellicott River in Tonwanda, NY, with the event lasting 
approximately 1 hour during the evening when vessel traffic is normally 
low. Moreover, the Coast Guard would issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the safety zone, and the 
rule would allow vessels to seek permission to enter the safety 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 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 
call or email 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.

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

[[Page 38989]]

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, Rev. 1, associated implementing instructions, 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 a safety zone 
lasting approximately 1 hour that will prohibit entry within a 280-foot 
radius over Ellicott River in Tonawanda, NY for a fireworks display. 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. 1. A 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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, 6.04-6, and 
160.5; Department of Homeland Security Delegation No. 0170.1, 
Revision No. 01.2.


0
2. Add Sec.  165.T09-0535 to read as follows:


Sec.  165.T09-0535  Safety Zone; Ellicott River, Tonawanda, NY.

    (a) Location. The following area is a safety zone: All waters of 
the Ellicott River, from surface to bottom, encompassed by a 280-foot 
radius around 43[deg]01'18.1'' N, 78[deg]52'40.9'' W.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Buffalo (COTP) in the enforcement of the safety 
zone.
    (c) Regulations. (1) In accordance with the general regulations in 
section Sec.  165.23, entry into, transiting, or anchoring within the 
safety zone described in paragraph (a) of this section is prohibited 
unless authorized by the COTP Buffalo or a designated representative.
    (2) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP Buffalo or his designated representative to 
obtain permission to do so. The COTP Buffalo or his designated 
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 COTP Buffalo or his designated 
representative.
    (d) Enforcement period. The regulated area described in paragraph 
(a) is effective from 9:45 p.m. through 10:30 p.m. on July 04, 2022.

    Dated: June 23, 2022.
M.I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2022-14005 Filed 6-29-22; 8:45 am]
BILLING CODE 9110-04-P