[Federal Register Volume 88, Number 117 (Tuesday, June 20, 2023)]
[Proposed Rules]
[Pages 39799-39801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12364]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0456]
RIN 1625-AA00


Safety Zone; Lake Erie, Cleveland, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish an annually 
recurring safety zone for certain waters of Lake Erie. This action is 
necessary to provide for the safety of life on these navigable waters 
near Cleveland, OH, during the Tri CLE Rock and Roll Run. 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 July 20, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0456 using the Federal Decision-Making Portal at https://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 Jared Stevens, Waterways 
Management Division, MSU Cleveland, U.S. Coast Guard; telephone 216-
937-0124, 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, Purpose, and Legal Basis

    On April 19, 2023, Tri CLE Rock Roll Run notified the Coast Guard 
that it will be sponsoring a triathlon on August 11 and 12, 2023, and 
then again annually on or around the second or third weekend in August 
every year after. The triathlon is to take place in the North Coast 
Harbor and into the West Basin Channel in Cleveland, OH. The Captain of 
the Port Buffalo (COTP) has determined that a safety zone covering 
navigable waters and tributaries of Lake Erie within the North Coast 
Harbor and the West Basin Channel in Cleveland, OH, is needed to 
protect participants during the swimming portion of the triathlon.
    The purpose of this rulemaking is to ensure the safety of 
participants and the navigable waters within the course of the swimming 
portion of the triathlon before, during, and after the scheduled marine 
event. The Coast Guard is proposing this rulemaking under authority in 
46 U.S.C. 70034 (previously 33 U.S.C. 1231).

III. Discussion of Proposed Rule

    The COTP is proposing to establish a permanent safety zone in order 
to protect participants during the swimming portion of the triathlon. 
The safety zone would cover all navigable waters and tributaries of 
Lake Erie within the North Coast Harbor and immediately adjacent waters 
in Cleveland, OH; the boundaries of the safety zone would form a 
rectangle with the four corners of the polygon located in the following 
positions: (1) 41[deg]30'41'' N, 081[deg]42'01'' W; (2) 41[deg]30'47'' 
N, 081[deg]41'53'' W; (3) 41[deg]30'32'' N, 081 41'39'' W; (4) 41[deg] 
30'27'' N, 081[deg]41'47'' W. The duration of the zone is intended to 
ensure the safety of participants in these navigable waters before, 
during, and after the swim portion of the Tri CLE Rock Roll Run 
triathlon. The event will then reoccur on an annual basis on or around 
the second or third weekend in August. Exact dates and times of 
enforcement will be made public via notice of enforcement prior to the 
event date. 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. This NPRM has not been designated a

[[Page 39800]]

``significant regulatory action,'' under Executive Order 12866. 
Accordingly, the NPRM has not been reviewed by the Office of Management 
and Budget (OMB).
    This regulatory action determination is based on size, location, 
and duration of the proposed rule. This safety zone would restrict 
navigation through the swimming area for 7.5 hours on one day.

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 proposed 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 proposed 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. 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. If 
you believe this proposed rule has implications for federalism or 
Indian Tribes, please call or email 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 potential effects of 
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 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 the 
establishment of a safety zone lasting 7.5 hours that would prohibit 
entry in, out or through North Coast Harbor on August 11 and 12, 2023, 
and then again annually on or around the second or third weekend in 
August thereafter. Normally such actions are categorically excluded 
from further review under paragraph L63(b) of Appendix A, Table 1 of 
DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary 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. 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 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.

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.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0456 in the 
search box and click ``Search.'' Next, look for this document in the 
``Search Results'' column, and click on it. Then click on the 
``Comment'' option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked

[[Page 39801]]

Questions web page. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed rule. We may choose not to post 
off-topic, inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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 is 
proposing 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:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.

0
2. In Sec.  165.939, amend the table by revising its heading and adding 
entry (c)(7) to read as follows:


Sec.  165.939   Safety Zones; Annual Events in the Captain of the Port 
Buffalo Zone.

* * * * *

                        Table 1 to Sec.   165.939
------------------------------------------------------------------------
                                                        Enforcement date
             Event                   Location \1\         and time \2\
------------------------------------------------------------------------
                         (c) August Safety Zones
------------------------------------------------------------------------
 
                              * * * * * * *
(7) Tri CLE Rock Roll Run.....  Cleveland, OH. All      On or around the
                                 U.S. waters of Lake     2nd or 3rd
                                 Erie; Cleveland         weekend of
                                 Harbor, from position   August.
                                 (1) 41[deg]30'41'' N
                                 081[deg]42'01'' W, to
                                 (2) 41[deg]30'47'' N
                                 081[deg]41'53'' W, to
                                 (3) 41[deg]30'32'' N
                                 081 41'39'' W, to (4)
                                 41[deg]30'27'' N
                                 081[deg]41'47'' W,
                                 then return to
                                 original position
                                 (NAD 83).
 
                              * * * * * * *
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\1\ All coordinates listed in Table 165.xxx reference Datum NAD 1983.
\2\ As noted in paragraph (a)(3) of this section, the enforcement dates
  and times for each of the listed safety zones are subject to change.
  In the event of a change, or for enforcement periods listed that do
  not allow a specific date or dates to be determined, the Captain of
  the Port will provide notice to the public by publishing a Notice of
  Enforcement in the Federal Register, as well as, issuing a Broadcast
  Notice to Mariner.]


    Dated: May 31, 2023.
M.I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2023-12364 Filed 6-16-23; 8:45 am]
BILLING CODE 9110-04-P