[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Rules and Regulations]
[Pages 66686-66687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21194]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0765]
RIN 1625-AA00


Safety Zone; 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 350-foot radius of 42 52'07.96'' N 78 
53'00.87'' W. The safety zone is needed to protect personnel, vessels, 
and the marine environment from potential hazards created by fallout 
from a fireworks display. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port, 
Sector Buffalo.

DATES: This rule is effective from 7:30 p.m. through 9:30 p.m. on 
October 6, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0765 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 LT William Kelley, Waterways Management at Sector 
Buffalo, U.S. Coast Guard; telephone 716-843-9343, 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 of the fireworks display 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 this firework 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 Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port (COTP) Buffalo has determined that 
potential hazards associated with a fireworks display starting October 
6, 2023 at 7:30 p.m., will be a safety concern for anyone within a 350-
foot radius of the launch site at 42 52'07.96'' N 78 53'00.87'' W. This 
rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while the 
fireworks display is active.

IV. Discussion of the Rule

    This rule establishes a safety zone from 7:30 p.m. until 9:30 p.m. 
on October 6, 2023. The safety zone will cover all navigable waters 
within 350 feet of the launch site at 42 52'07.96'' N 78 53'00.87'' W. 
The duration of the zone is intended to protect personnel, vessels, and 
the marine environment in these navigable waters from potential 
hazards, while the fireworks display is active. No vessel or person 
will be permitted to enter the safety zone without obtaining permission 
from the COTP Buffalo 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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
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 350-foot radius of the fireworks launch site at 42 
52'07.96'' N 78 53'00.87'' W lasting approximately one 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 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

[[Page 66687]]

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 2 hours that will prohibit entry within 350 feet of 
the fireworks launch site at 42 52' 07.96'' N 78 53' 00.87'' W. 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 record 
keepingrequirements, 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, 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. Add Sec.  165.T09-0765 to read as follows:


Sec.  165.T09-0765  Safety Zone; Lake Erie, Buffalo, NY.

    (a) Location. The following area is a safety zone: All waters of 
Lake Erie, from surface to bottom, encompassed by 350-foot radius 
around 42 52'07.96'' N 78 53'00.87'' 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 (COTP) Buffalo 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 this 
safety zone is prohibited unless authorized by the COTP Buffalo or 
their designated representative.
    (2) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP Buffalo or their designated representative 
to obtain permission to do so. The COTP Buffalo or their 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 their 
designated representative.
    (d) Enforcement period. The regulated area described in paragraph 
(a) is effective from 7:30 p.m. through 9:30 p.m. on October 6, 2023.

    Dated: September 13, 2023.
M.I. Kuperman,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2023-21194 Filed 9-27-23; 8:45 am]
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