[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Proposed Rules]
[Pages 19920-19923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9993]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2009-0110]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishment of a safety zone for a 
powerboat race in the Captain of the Port Buffalo zone. This proposed 
rule is intended to restrict vessels from areas of water during events 
that pose a hazard to public safety. The safety zone established by 
this proposed rule is necessary to protect spectators, participants, 
and vessels from the hazards associated with a powerboat race.

DATES: Comments and related materials must be received by the Coast 
Guard on or before June 29, 2009. Requests for public meetings must be 
received by the Coast Guard on or before May 29, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0110 using one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the

[[Page 19921]]

SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, contact Lieutenant Brian Sadler, Prevention Department, U.S. 
Coast Guard Sector Buffalo, at (716) 843-9573. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0110), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
deliver, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand delivery, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0110 in the Docket ID box, press Enter, and 
then click on the balloon shape in the Actions column. If you submit 
your comments by mail or hand delivery, submit them in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying and 
electronic filing. If you submit comments by mail and would like to 
know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the proposed 
rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0119 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 
either the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays; or the Coast Guard 
Sector Buffalo, 1 Fuhrmann Blvd., Buffalo, NY 14203 between 8 a.m. and 
4 p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before May 29, 2009 using one of the four methods 
specified under ADDRESSES. Please explain why you believe a public 
meeting would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

Background and Purpose

    Temporary safety zones are necessary to ensure the safety of 
vessels and spectators from the hazards associated with powerboat 
races. Based on recent accidents that have occurred in other Captain of 
the Port zones, the Captain of the Port Buffalo, has determined 
powerboat races pose significant risks to public safety and property. 
The likely combination of large numbers of recreational vessels, 
congested waterways, and alcohol use, could easily result in serious 
injuries or fatalities.

Discussion of Proposed Rule

    The proposed rule and associated safety zone are necessary to 
ensure the safety of vessels and people during events in the Captain of 
the Port Buffalo area of responsibility that may pose a hazard to the 
public. The proposed safety zone is described in subparagraph (1) of 
this regulation. The proposed safety zone will be enforced only 
immediately before and during the event which poses hazard to the 
public and only upon notice by the Captain of the Port. The Captain of 
the Port Buffalo will cause notice of enforcement of the safety zone 
established by this section to be made by all appropriate means to the 
affected segments of the public including publication in the Federal 
Register as practicable, in accordance with 33 CFR 165.7(a). Such means 
of notification may also include, but are not limited to Broadcast 
Notice to Mariners or Local Notice to Mariners. The Captain of the Port 
will issue a Broadcast Notice to Mariners notifying the public when 
enforcement of the safety zone established by this section is 
suspended.

Regulatory Analyses

    We developed this proposed 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 proposed 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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. The Coast 
Guard's use of this safety zone will be periodic in nature, of short 
duration, and designed to minimize the impact on navigable waters. This 
safety zone will only be enforced immediately before and during the 
time the event occurs. Furthermore, this safety zone has been designed 
to allow vessels to transit unrestricted to portions of the waterway 
not affected by the safety zone. The Coast Guard expects insignificant 
adverse impact to mariners from the activation of this safety zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered

[[Page 19922]]

whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which might be small entities: the owners or operators of vessels 
intending to transit or anchor in the area designated as the safety 
zone in subparagraph (1) during the date and time the safety zone is 
being enforced. This safety zone would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. The safety zone in this proposed rule would be in effect for 
short periods of time and only once per year. The proposed safety zone 
has been designed to allow traffic to pass safely around the zone 
whenever possible and vessels will be allowed to pass through the zone 
with the permission of the Captain of the Port.
    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.

Assistance for Small Entities

    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 so that they can better 
evaluate its effects on them and participate in the rulemaking. 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 contact LT Brian Sadler, 
Prevention Department, Coast Guard Sector Buffalo, Buffalo, NY at (716) 
843-9573. 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 proposed rule would call 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 proposed 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 or more in any 
one year. Though this proposed rule will not result in such 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

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

Civil Justice Reform

    This proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed 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 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.

Energy Effects

    We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 0023-01 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 made a preliminary determination under the Instruction that this 
action is one of a category of actions which do not individually or 
cumulatively have a significant effect on the human environment. A 
preliminary environmental analysis checklist 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.

[[Page 19923]]

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. 1226, 1231; 46 U.S.C. Chapter 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.

    2. Add Sec.  165.T09-0110 to read as follows:


Sec.  165.T09-0110  Safety Zone; Thunder on Niagara, Niagara River, 
North Tonawanda, NY.

    (a) Location. The following area is a temporary safety zone: all 
waters of the Upper Niagara River, North Tonawanda, NY within two miles 
of the Grand Island Bridge located at 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. All 
Geographic coordinates are North American Datum of 1983 (NAD 83).
    (b) Effective Period. This regulation is effective from 11 a.m. 
August 29, 2009 to 6 p.m. August 30, 2009. This zone will be enforced 
from 11 a.m. to 6 p.m. on August 29, 2009 and August 30, 2009.
    (c) Regulations.
    (1) The general regulations contained in 33 CFR 165.23 apply.
    (2) All persons and vessels must comply with the instructions of 
the Coast Guard Captain of the Port or the designated on scene patrol 
personnel. Coast Guard patrol personnel include commissioned, warrant, 
and petty officers of the U.S. Coast Guard. Upon being hailed by a U.S. 
Coast Guard vessel via siren, radio, flashing light, or other means, 
the operator shall proceed as directed.
    (3) Commercial vessels may request permission from the Captain of 
the Port Buffalo to transit the safety zone. Approval will be made on a 
case-by-case basis. Requests must be made in advance and approved by 
the Captain of the Port before transits will be authorized. The Captain 
of the Port may be contacted via U.S. Coast Guard Sector Buffalo on 
Channel 16, VHF-FM.

    Dated: March 6, 2009.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. E9-9993 Filed 4-29-09; 8:45 am]
BILLING CODE 4910-15-P