[Federal Register Volume 74, Number 97 (Thursday, May 21, 2009)]
[Rules and Regulations]
[Pages 23796-23798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11836]



[[Page 23796]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0343]
RIN 1625-AA00


Safety Zone; ESL Air and Water Show, Lake Ontario, Ontario Beach 
Park, Rochester, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone for an air and 
water show in the Captain of the Port Buffalo zone. This 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 
rule is necessary to protect spectators, participants, and vessels from 
the hazards associated with an air and water show.

DATES: This rule is effective from 10 a.m. May 28, 2009 through 4:30 
p.m. May 31, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0343 and are available online 
at http://www.regulations.gov. They are also available for inspection 
or copying at two locations: 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, and 
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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Lieutenant Brian Sadler, Prevention Department, 
U.S. Coast Guard Sector Buffalo, at (716) 843-9385. 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 
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 immediate action is necessary to 
ensure the safety of vessels, spectators, participants, and others in 
the vicinity of the marine event on the dates and times this rule will 
be in effect and delay would be contrary to the public interest.
    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 because delaying the effective date 
would be contrary to the public interest, since immediate action is 
needed to ensure the public's safety.

Background and Purpose

    Temporary safety zones are necessary to ensure the safety of 
vessels and spectators from the hazards associated with air and water 
shows. Based on accidents that have occurred in other Captain of the 
Port zones, the Captain of the Port Buffalo has determined air and 
water shows 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 Rule

    The rule and associated safety zones 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 safety zone is described in subparagraph (1) of this regulation. 
The safety zone will be enforced only immediately before and during the 
event which poses a 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, 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 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.
    We expect the economic impact of this 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 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 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 rule would be in effect for short periods of 
time and only once per year. The safety zone has been designed to allow 
traffic to pass safely around the zone whenever possible and vessels 
will

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be allowed to pass through the zone with the permission of the Captain 
of the Port.

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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. 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 LT Brian Sadler, Prevention 
Department, Coast Guard Sector Buffalo, Buffalo, NY at (716) 843-9385.
    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 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 effect a 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 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 which 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. This rule involves the establishment of a 
safety zone and, therefore, paragraph (34)(g) of the Instruction 
applies. 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.

0
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. 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; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add a new temporary Sec.  165.T09-0343 to read as follows:


Sec.  165.T09-0343  Safety Zone; ESL Air and Water Show, Lake Ontario, 
Ontario Beach Park, Rochester, NY.

    (a) Location. The following area is a temporary safety zone: All 
waters at the head of the Genesee River and Lake Ontario surrounding 
Ontario Beach Park

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located at 43[deg]16'18.202'' N., 077[deg]36'38.919'' W., 
43[deg]15'53.209'' N., 077[deg]37'00.698'' W., 43[deg]15'46.366'' N., 
077[deg]35'30.524'' W., 43[deg]15'21.376'' N., 077[deg]35'52.307'' W. 
All Geographic coordinates are North American Datum of 1983 (NAD 83).
    (b) Effective Period. This regulation is effective from 10 a.m., 
May 28, 2009 through 4:30 p.m., May 31, 2009. This zone will be 
enforced from 10 a.m. to 4:30 p.m. May 28, 2009 through May 31, 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: May 1, 2009.
R.S. Burchell,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. E9-11836 Filed 5-20-09; 8:45 am]
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