[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Rules and Regulations]
[Pages 48734-48736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16018]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 a fireworks display and annual reoccurrences of 
this event. This regulation prohibits persons and vessels from being in 
the safety zone unless authorized by the Captain of the Port Buffalo or 
a designated representative.

DATES: This rule is effective without actual notice July 28, 2023. For 
the purposes of enforcement, actual notice will be used from 9:30 
through 10 p.m. on July 29, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0309 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 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 Information and Regulatory History

    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. 
In response, on June 21, 2023, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled Safety Zone; Henderson Bay, Henderson 
Harbor, NY (88 FR 40134). There we stated why we issued the NPRM, and 
invited comments on our proposed regulatory action related to this 
fireworks display. During the comment period that ended July 21, 2023, 
we received one comment that was in support of the rule.
    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 of 
this rule would be impracticable because immediate action is needed to 
respond to the potential safety hazards associated with the fireworks 
display.

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 potential hazards associated with the 
fireworks to be used in this July 29, 2023 display will be a safety 
concern for anyone within a 140-yard radius of the barge. The purpose 
of this rule is to ensure safety of vessels and the navigable waters in 
the safety zone before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment in support of our NPRM 
published June 21, 2023. There are no changes in the regulatory text of 
this rule from the proposed rule in the NPRM.
    This rule establishes a safety zone that will be enforced from 9 
p.m. through 10:30 p.m. on July 29, 2023. The safety zone will cover 
all navigable waters within 140 yards of a barge in Henderson Harbor 
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 9 p.m. 
through 10:30 p.m. fireworks display. 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 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).

[[Page 48735]]

    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 received no comments from the Small Business 
Administration on this rulemaking. 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 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 involves a 
safety zone lasting 1.5 hours that would prohibit entry within 140 
yards of a fireworks barge. 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. We prepare a preliminary REC for these types of field 
regulations because the DHS Instruction Manual (and U.S. Coast Guard 
Environmental Planning Implementing Procedures) direct that a REC be 
prepared for these specified field regulations when certain conditions 
apply--see L59(a), L60(a), and L60(d).

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 is 
amending 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 No. 1.03.


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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[[Page 48736]]



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                                                        Enforcement date
             Event                   Location \1\         and time \2\
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                          (b) July Safety Zones
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                              * * * * * * *
(34) Christmas in July          Henderson Harbor, NY.   On or around the
 Fireworks.                      All waters within a     last weekend of
                                 420-foot radius of      July.
                                 the barge at position
                                 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.
\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: July 21, 2023.
Sean M. Murray,
Commmander, U.S. Coast Guard, Alternate Captain of the Port Buffalo.
[FR Doc. 2023-16018 Filed 7-27-23; 8:45 am]
BILLING CODE 9110-04-P