[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Proposed Rules]
[Pages 40134-40136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11880]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0309]
RIN 1625-AA00


Safety Zone; Henderson Bay, Henderson Harbor, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a permanent safety 
zone for certain waters of Henderson Harbor. This action is necessary 
to provide for the safety of life on these navigable waters near 
Henderson Harbor, Henderson, NY, during annual reoccurrences of a 
fireworks display. 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 21, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0309 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 MST2 Andrew Nevenner, Waterways 
Management Division MSD Massena, U.S. Coast Guard; telephone 315-769-
5483, 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 March 6, 2023, the Henderson Business and Community Council 
notified the Coast Guard that it will be conducting a fireworks display 
from 9:30 through 10 p.m. on July 29, 2023, for the Christmas in July 
Celebration. The fireworks are to be launched from a barge in Henderson 
Bay approximately 1500 yards north of the town boat ramp located on the 
southern shore of Henderson Harbor in Henderson Harbor, NY. Hazards 
from firework displays include accidental discharge of fireworks, 
dangerous projectiles, and falling hot embers or other debris. The 
Captain of the Port Buffalo (COTP) has determined that potential 
hazards associated with the fireworks to be used in this display would 
be a safety concern for anyone within a 140-yard radius of the barge.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within a 140-yard radius of the fireworks 
barge before, during, and after the scheduled 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 safety zone for certain waters 
of Henderson Harbor for annual reoccurrences of the fireworks display, 
which will be announced in the Federal Register. The safety zone would 
cover all navigable waters within 140-yards of a barge in Henderson Bay 
located approximately 1500-yards north of the town boat ramp located on 
the southern shore of Henderson Harbor in Henderson Harbor, NY. The 
duration of the zone is intended to ensure the safety of vessels and 
these navigable waters before, during, and after the scheduled 
fireworks display. 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 ``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 the size, 
location, duration, and time-of-day of the safety zone. Vessel traffic 
would be able to safely transit around this safety zone which would 
impact a small designated area of Henderson Bay for less than 2 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 zone, and the rule would allow vessels to 
seek permission to enter the 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 
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

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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 a safety 
zone lasting 1.5 hours that would prohibit entry within 140 yards of a 
fireworks barge. Normally such actions are categorically excluded from 
further review under paragraph L60(a) of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 1. 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-2023-0309 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 
Questions web page. 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; 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. 
00170.1, Revision 1.3.

0
2. In Sec.  165.939, amend Table 165.939 by adding entry (b)(34)) to 
read as follows:


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

* * * * *

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                                                                                       Enforcement date and time
                  Event                                  Location \1\                             \2\
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                                              (b) July Safety Zones
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                                                    * * * * *
(34) Christmas in July Fireworks........  Henderson Harbor, NY. All waters within a   On or around the last
                                           420-foot radius of the barge at position    weekend of July.
                                           43[deg]86'66'' N, 076[deg]20'97'' W in
                                           Henderson Harbor, NY.
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\1\ All coordinates listed in Table 165.xxx reference Datum NAD 1983.

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\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 30, 2023.
Mark I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2023-11880 Filed 6-20-23; 8:45 am]
BILLING CODE 9110-04-P