[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Rules and Regulations]
[Pages 51885-51887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21186]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0718]
RIN 1625-AA00


Safety Zone; Thunder on Niagara, Niagara River, North Tonawanda, 
NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on 
Niagara River, North Tonawanda, NY. This temporary safety zone is 
intended to restrict vessels from a portion of the Niagara River during 
the Thunder on Niagara powerboat races. This temporary safety zone is 
necessary to protect spectators and vessels from the hazards associated 
with powerboat races.

DATES: This rule is effective from 10 a.m. on August 20, 2011 until 6 
p.m. on August 21, 2011.

ADDRESSES: Documents mentioned in this preamble as being available in 
the docket, are part of docket USCG-2011-0718 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0718 in the 
``Keyword'' box, and then clicking ``Search.'' This material is also 
available for inspection or copying at the Docket Management Facility 
(M-30), U.S. Department of Transportation, West Building Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Chris Mercurio, Waterways 
Management Division Chief, U.S. Coast Guard Sector Buffalo; telephone 
716-843-9573, e-mail <a href="/cdn-cgi/l/email-protection#a1e2c9d3c8d28fe78fecc4d3c2d4d3c8cee1d4d2c2c68fccc8cd"><span class="__cf_email__" data-cfemail="b4f7dcc6ddc79af29af9d1c6d7c1c6dddbf4c1c7d7d39ad9ddd8">[email protected]</span></a>. If you have questions 
on viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior

[[Page 51886]]

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 doing so would be impracticable and 
contrary to the public interest. The permit application was not 
received in sufficient time for the Coast Guard to solicit public 
comments before the start of the event. Thus, waiting for a notice and 
comment period to run would inhibit the Coast Guard from protecting the 
public and vessels from the hazards associated with powerboat races on 
navigable waters.
    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 this rule would be 
impracticable and contrary to the public interest for the same reasons 
discussed in the preceding paragraph.

Background and Purpose

    On August 20th and 21st of 2011, the Thunder on Niagara powerboat 
races will be held on the Niagara River near North Tonawanda, NY. Based 
on recent accidents that have occurred in other Captain of the Port 
zones, the Captain of the Port Buffalo, has determined that powerboat 
races present significant risks to public safety and property. The 
likely combination of large numbers of recreational vessels, congested 
waterways, and alcohol use, presents a significant risk of serious 
injuries or fatalities.

Discussion of Rule

    Because of the aforementioned hazards, the Captain of the Port 
Buffalo has determined that this temporary safety zone is necessary to 
ensure the safety of spectators and vessels during the Thunder on 
Niagara event. The safety zone will be enforced from 10 a.m. on August 
20, 2011 until 6 p.m. on August 21, 2011. The safety zone will 
encompass all waters of the Niagara River, North Tonawanda, NY starting 
at position 42[deg] 03'36'' N, 078[deg] 54'45'' W to 43[deg] 03'09'' N, 
078[deg] 55'21'' W to 43[deg] 03'00'' N, 078[deg] 53'42'' W to 43[deg] 
02'42'' N, 078[deg] 54'09'' W, then returning to the point of origin. 
(DATUM: NAD 83).

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS). We conclude that this rule is not a significant 
regulatory action because we anticipate that during the short time this 
zone will be in effect, it will have minimal impact on the economy, 
will not interfere with other agencies, will not adversely alter the 
budget of any grant or loan recipients, and will not raise any novel or 
legal policy issue. The safety zone will be enforced for a relatively 
short amount of time, and vessels may still pass through the zone with 
permission of the Captain of the Port Buffalo.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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.
    This temporary final rule may affect the following entities, some 
of which might be small entities: The owners of operators of vessels 
intending to transit or anchor in a portion of the Niagara River near 
North Tonawanda, New York between 10 a.m. on August 20, 2011 to 6 p.m. 
on August 21, 2011.
    This temporary final rule will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: This rule will be in effect for a relatively short amount of 
time and vessels may still transit through the safety zone with 
permission from the Captain of the Port Buffalo or his on-scene 
representative.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

[[Page 51887]]

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction because it involves the establishment of a safety zone. 
An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

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 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: 33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.
0
2. Add Sec.  165.T09-0718 to read as follows:


Sec.  165.T09-0718  Safety Zone; Thunder on Niagara, Niagara River, 
North Tonawanda, NY.

    (a) Location. The safety zone will encompass all waters of the 
Upper Niagara River, North Tonawanda, NY starting at position 42[deg] 
03'36'' N, 078[deg] 54'45'' W to 43[deg] 03'09'' N, 078[deg]55'21'' W 
to 43[deg] 03'00'' N, 078[deg] 53'42'' W to 43[deg] 02'42'' N, 078[deg] 
54'09'' W. (DATUM:NAD 83).
    (b) Effective and Enforcement Period. This regulation is effective 
and will be enforced from 10 a.m. on August 20, 2011 until 6 p.m. on 
August 21, 2011.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transiting, or anchoring within the safety zone 
established by this section is prohibited unless authorized by the 
Captain of the Port Buffalo or his on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port Buffalo or his on-scene 
representative.
    (3) The ``on-scene representative'' of the Captain of the Port 
Buffalo, is any Coast Guard commissioned, warrant, or petty officer who 
has been designated by the Captain of the Port Buffalo to act on his 
behalf.
    (4) Vessel operators desiring to enter or operate within an 
enforced safety zone shall contact the Captain of the Port Buffalo or 
his on-scene representative to obtain permission to do so. The Captain 
of the Port Buffalo 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 Buffalo, or his on-scene representative.

    Dated: August 8, 2011.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2011-21186 Filed 8-18-11; 8:45 am]
BILLING CODE 9110-04-P


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