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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2018-0832]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to establish a temporary safety zone for certain waters of the Buffalo River during the Head of the Buffalo Regatta. 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 October 5, 2018.

# ADDRESSES:

                        You may submit comments identified by docket number USCG-2018-0832 using the Federal eRulemaking 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 LTJG Sean Dolan, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9322, email                         *D09-SMB-SECBuffalo-WWM@uscg.mil.*

# SUPPLEMENTARY INFORMATION:

## I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

## II. Background, Purpose, and Legal Basis

On August 16, 2018, the Buffalo Scholastic Rowing Association notified the Coast Guard that it would be conducting a rowing regatta from 8:00 a.m. to 6:00 p.m. on October 20, 2018, in conjunction with the Head of the Buffalo Regatta. The rowing vessels will launch for their warmup from the Ohio St. Kayak Launch, at position 42°51′55.9″ N, 78°52′07.2″ W, then proceed to travel upriver to turnaround at position 42°51′36.7″ N, 78°50′56.0″ W. The race will then begin at position 42°51′40.0″ N, 78°50′56.5″ W, and proceed downriver to the finish line near the Ohio St. bridge at position 42°52′17.5″ N, 78°52′21.0″ W. Participants will then proceed further upriver to the turnaround point located at position 42°52′19.4″ N, 78°52′25.3″ W, and return to the starting point. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with rowboat races would be a safety concern for anyone within that stretch of the Buffalo River.

The purpose of this rulemaking is to enhance the safety of vessels and racers on the navigable waters within the above stated points, before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority 33 U.S.C. 1231.

## III. Discussion of Proposed Rule

The COTP proposes to establish a temporary safety zone to be enforced intermittently from 8:00 a.m. until 6:00 p.m. on October 20, 2018. The safety zone will cover all navigable waters between the two points starting at position 42°52′19.4″ N, 78°52′25.3″ W, and ending at position 42°51′36.7″ N, 78°50′56.0″ W, on the Buffalo River, Buffalo, NY. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled rowboat races between 8:00 a.m. and 6:00 p.m. No vessel or person will 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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. 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), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would not be able to safely transit around this safety zone, which would impact a small designated area of the Buffalo River. However, 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                           ( print page 45060)                        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 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 rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact 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 contact 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 effects of this rule elsewhere in this preamble.

### F. Environment

                    We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, 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 establishing a safety zone lasting 10 hours that would prohibit entry into the waters contained within a 3.1-mile stretch of the Buffalo River. 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. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under                     **ADDRESSES**                    . 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 contact 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.

                    We encourage you to submit comments through the Federal eRulemaking Portal at                     *http://www.regulations.gov.*                     If your material cannot be submitted using                     *http://www.regulations.gov,*                     contact the person in the                     **FOR FURTHER INFORMATION CONTACT**                     section of this document for alternate instructions.                

                    We accept anonymous comments. All comments received will be posted without change to                     *https://www.regulations.gov*                     and will include any personal information you have provided. For more about privacy and the docket, visit                     *https://www.regulations.gov/​privacyNotice.*

                    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at                     *https://www.regulations.gov*                     and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.                

# 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 proposes to amend 33 CFR part 165 as follows:

# PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows: 

Authority:33 U.S.C. 1231; 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. 0170.1.

2. Add § 165.T09-0832 to read as follows: 

      ( print page 45061)    
§ 165.T09-0832

                        (a)                         *Location.*                         The safety zone will encompass all waters of the Buffalo River, Buffalo, NY, beginning at position 42°52′19.4″ N, 78°52′25.3″ W to 42°51′36.7″ N, 78°50′56.0″ W.                    

                        (b)                         *Enforcement Period.*                         This rule is effective from 8:00 a.m. until 6:30 p.m. on October 20, 2018.                    

                        (c)                         *Regulations.*                         (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated 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 designated 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 the safety zone must 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 28, 2018.

Joseph S. Dufresne,

Captain, U.S. Coast Guard, Captain of the Port Buffalo.

[FR Doc. 2018-19192 Filed 9-4-18; 8:45 am]

BILLING CODE 9110-04-P