[Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)]
[Proposed Rules]
[Pages 38854-38857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10024]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0222]
RIN 1625-AA00


Safety Zone; 2024 Duluth Air Spectacular, Lake Superior, Duluth, 
MN

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposing to establish a temporary safety 
zone for certain waters of Lake Superior. This action is necessary to 
provide for the safety of life on these navigable waters near Canal 
Park in Duluth, MN during an air show on July 31, 2024. This proposed 
rulemaking would prohibit persons and vessels from being in the safety 
zone unless authorized by the Captain of the Port Marine Safety Unit 
Duluth 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 June 7, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2024-0222 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. This notice of proposed rulemaking 
with its plain-language, 100-word-or-less proposed rule summary will be 
available in this same docket.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Chief Petty Officer Kyle Weitzell, 
Marine Safety Unit Duluth, Waterways Management Division, U.S. Coast 
Guard; telephone 218-725-3825, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register

[[Page 38855]]

NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On October 10, 2023, the Coast Guard was notified of an air show 
that will take place over the waters of Lake Superior near Canal Park 
in Duluth, MN from 3 p.m. to 6 p.m. on July 31, 2024. During this air 
show, planes will be flying low over the water within the boundary of a 
zone marked by buoys and small boat on scene. Hazards from this air 
show include low flying aircraft and jet exhaust produced by the 
engines and distraction to the pilots if general boating traffic were 
to be present within this area. The Captain of the Port Marine Safety 
Unit Duluth (COTP) has determined that potential hazards associated 
with the air show at this location would be a safety concern for anyone 
within an area defined by the following positions, beginning at N 
46[deg]47'34.81'', W 092[deg]03'46.70'', then proceeding southwest to N 
46[deg]46'52.73'', W 092[deg]05'05.47'', then proceeding southwest to N 
46[deg]46'48.00'', W 092[deg]05'28.02'', the following the shoreline 
northward to N 46[deg]48'1.98'', W 092[deg]04'16.02'', and then 
returning to the starting point.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within this area before, during, and after the 
scheduled event. The Coast Guard is proposing this rulemaking under 
authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone from noon to 9 
p.m. on July 31, 2024. The safety zone would cover all navigable waters 
of Lake Superior within an area defined by the following positions, 
beginning at N 46[deg]47'34.81'', W 092[deg]03'46.70'', then proceeding 
southwest to N 46[deg]46'52.73'', W 092[deg]05'05.47'', then proceeding 
southwest to N 46[deg]46'48.00'', W 092[deg]05'28.02'', the following 
the shoreline northward to N 46[deg]48'1.98'', W 092[deg]04'16.02'', 
and then returning to the starting point near Canal Park in Duluth, MN. 
The duration of the zone is intended to ensure the safety of vessels 
and these navigable waters before, during, and after the scheduled 3 
p.m. to 6 p.m. air show. 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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, the NPRM has not been reviewed by the Office of Management 
and Budget (OMB).
    This regulatory action determination is based on the short duration 
and small size of the safety zone as well as the ability for most boats 
to transit between the Duluth Shipping Canal and Lake Superior without 
entering 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 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.

[[Page 38856]]

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 not more than 9 hours that would prohibit entry within an 
area under the flight path of aircraft participating in an air show. 
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. 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- 2024-0222 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. 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. Add Sec.  165.T09-0222 to read as follows:


Sec.  165.T09-0222  Safety Zone; 2024 Duluth Air Spectacular, Lake 
Superior, Duluth, MN.

    (a) Location. The following area is a safety zone: All navigable 
waters of Lake Superior within an area defined by the following 
positions, beginning at N 46[deg]47'34.81'', W 092[deg]03'46.70'', then 
proceeding southwest to N 46[deg]46'52.73'', W 092[deg]05'05.47'', then 
proceeding southwest to N 46[deg]46'48.00'', W 092[deg]05'28.02'', the 
following the shoreline northward to N 46[deg]48'1.98'', W 
092[deg]04'16.02'', and then returning to the starting point near Canal 
Park in Duluth, MN.
    (b) Enforcement period. July 31, 2024, from noon to 9 p.m. The 
specific time frame for waterway closure will be announce via Broadcast 
Notice to Mariners.
    (c) Definitions. The following definitions apply to this section:
    (1) On-scene representative means any Coast Guard commissioned, 
warrant, or petty officer designated by the Captain of the Port Duluth 
to monitor a safety zone, permit entry into the zone, give legally 
enforceable orders to persons or vessels within the zones, and take 
other actions authorized by the Captain of the Port.
    (2) Public vessel means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting, or anchoring within this safety 
zone identified in paragraph (a) of this section is prohibited unless 
authorized by the Captain of the Port Duluth or his designated on-scene 
representative.
    (2) The safety zone identified in paragraph (a) of this section is 
closed to all vessel traffic, except as may be permitted by the Captain 
of the Port Duluth or his designated on-scene representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the Captain of the Port Duluth or his on-scene 
representative to obtain permission to do so. The Captain of the Port 
Duluth or his on-scene 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 Captain of 
the Port Duluth, or his on-scene representative.
    (e) Exemption. Public vessels, as defined in paragraph (c) of this 
section, are exempt from the requirements in this section.
    (f) Waiver. For any vessel, the Captain of the Port Duluth or his 
designated representative may waive any of the requirements of this 
section, upon finding that operational conditions or other 
circumstances are such that application of this section is unnecessary 
or impractical for the purposes of public or environmental safety.


[[Page 38857]]


    Dated: May 2, 2024.
Sean V. Murphy,
Lieutenant, U.S. Coast Guard, Acting Captain of the Port Marine Safety 
Unit Duluth.
[FR Doc. 2024-10024 Filed 5-7-24; 8:45 am]
BILLING CODE 9110-04-P