E8-11139. Firework Events; Great Lake Annual Firework Events

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing safety zones for various fireworks events in the Captain of the Port Buffalo zone. This rule consolidates current regulations establishing safety zones for annual fireworks events in the former Captain of the Port Cleveland Zone and the former Captain of the Port Buffalo Zone. In addition, it adds events not previously published in Coast Guard regulations. These safety zones are necessary to protect spectators, participants, and vessels from the hazards associated with fireworks displays or other events.

DATES:

This rule is effective June 18, 2008.

ADDRESSES:

Comments and material received from the public as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0219 and are available online at http://www.regulations.gov. This material is 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 Coast Guard Sector Buffalo, 1 Fuhrmann Boulevard, 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 rule, call CDR Joseph Boudrow, Prevention Department, Coast Guard Sector Buffalo, Buffalo, NY at [phone]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On April 3, 2008, we published a notice of rulemaking (NPRM) entitled Annual Events Requiring Safety Zones in the Captain of the Port Buffalo zone in the Federal Register (73 FR 18225). We received no letters commenting on the rule. No public meeting was requested, and none was held.

Background and Purpose

On July 22, 2005, the Coast Guard consolidated the Captain of the Port Cleveland zone and the Captain of the Port Buffalo zone into one zone re-defining the Captain of the Port Buffalo zone. This rule will consolidate the regulations found in 33 CFR 165.202, Safety Zones; Annual Fireworks Events in the Captain of the Port Cleveland Zone, the regulations found in 33 CFR 165.914, Safety Zones; Annual Fireworks Events in the Captain of the Port Buffalo Zone so that all the annual fireworks events in the current Captain of the Port Buffalo Zone are found in one CFR section. In addition this rule adds events not previously published in the CFR.

These safety zones are necessary to protect vessels and people from the hazards associated with fireworks displays or other events. Such hazards include obstructions to the waterway that may cause marine casualties and the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm.

Discussion of Comments and Changes

No comments were received regarding this rule.

Regulatory Evaluation

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 these safety zones will be periodic, of short duration, and designed to minimize the impact on navigable waters. These safety zones will only be enforced immediately before, during, and after the time the events occur. Furthermore, these safety zones have been designed to allow vessels to transit unrestricted to portions of the waterways not affected by the safety zones. The Coast Guard expects insignificant adverse impact to mariners from the activation of these safety zones.

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 would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: The owners of operators of vessels intending to transit or anchor in the areas designated as safety zones in subparagraphs (1) through (26) during the dates and times the safety zones are being enforced.

These safety zones 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 short periods of time, and only once per year, per zone. The safety zones have been designed to allow traffic to pass safely around the zone whenever possible and vessels will be allowed to pass through the zones 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), in the NPRM we offered to assist small entities in understanding the rule so that they could 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 or more in any one year. Though this rule will not result in such expenditure, we nevertheless discuss its effects elsewhere in this preamble.

Taking of Private Property

This 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 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 safety that may disproportionately affect children.

Indian Tribal Governments

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this rule or options for compliance are encourage to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT.

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 Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph 34(g) of the Instruction, from further environmental documentation.

A final “Environmental Analysis Check List” and a final “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, and 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

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; 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 § 165.939 to read as follows:

§ 165.939

Safety Zones; Annual Fireworks Events in the Captain of the Port Buffalo Zone.

(a) Safety Zones. The following areas are designated Safety zones and are listed geographically from New York to Ohio.

(1) Boldt Castle 4th of July Fireworks, Heart Island, NY.

(i) Location. All waters of the St. Lawrence River within a 500-foot radius of the land position: 44°20′39″ N, 075°55′16″ W; at Heart Island, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9 p.m. to 10 p.m. on July 4 of each year.

(2) Clayton Chamber of Commerce Fireworks, Calumet Island, NY.

(i) Location. All waters of the St. Lawrence River within a 500-foot radius of land position: 44°15′05″ N, 076°05′35″ W; in Calumet Island Harbor, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9 p.m. to 10 p.m. on July 1 of each year.

(3) French Festival Fireworks, Cape Vincent, NY.

(i) Location. All waters of the St. Lawrence River within a 500-foot radius of land position: 44°07′53″ N, 076°20′02″ W. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10:30 p.m. on the first or second weekend of July each year.

(4) Brewerton Fireworks, Brewerton, NY.

(i) Location. All waters of Lake Oneida within a 500-foot radius of barge position: 43°14′15″ N, 076°08′03″ W; in Brewerton, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10:30 p.m. on the first weekend of July each year.

(5) Celebrate Baldwinsville Fireworks, Baldwinsville, NY.

(i) Location. All waters of the Seneca River within a 500-foot radius of land position: 43°09′21″ N, 076°20′01″ W. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10 p.m. on the third weekend of September each year.

(6) Island Festival Fireworks Display, Baldwinsville, NY.

(i) Location. All waters of the Seneca River within a 500-foot radius of land position: 43°09′25″ N, 076°20′21″ W; in Baldwinsville, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 10 p.m. to 10:30 p.m. on the first weekend of July each year.

(7) Seneca River Days, Baldwinsville, NY.

(i) Location. All waters of the Seneca River within a 500-foot radius of land position: 43°09′25″ N, 076°20′21″ W; in Baldwinsville, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10:30 p.m. on the first weekend of July each year.

(8) Oswego Harborfest, Oswego, NY.

(i) Location. All waters of Lake Ontario within a 1,000-foot radius of barge position 43°28′10″ N, 076°31′04″ W; in Oswego, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9 p.m.to 10 p.m. on the last Saturday in July each year.

(9) Village Fireworks, Sodus Point, NY.

(i) Location. All waters of Sodus Bay within a 500-foot radius of land position: 43°16′27″ N, 076°58′27″ W; in Sodus Point, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 10 p.m. to 10:30 p.m. on the first Saturday in July each year.

(10) City of Syracuse Fireworks Celebration, Syracuse, NY.

(i) Location. All waters of Onondaga Lake within a 350-foot radius of land position 43°03′37″ N, 076°09′59″ W; in Syracuse, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10:30 p.m. on the last weekend in June each year.

(11) Tom Graves Memorial Fireworks, Port Bay, NY.

(i) Location. All waters of Port Bay within a 500-foot radius of barge position: 43°17′46″ N, 076°50′02″ W; in Port Bay, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 10 p.m. to 10:30 p.m. on the first weekend in July each year.

(12) Rochester Harbor and Carousel Festival, Rochester, NY.

(i) Location. All waters of Lake Ontario within a 500-foot radius of land position: 43°15′21″ N, 077°36′19″ W in Rochester, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 8 p.m. to 10 p.m. on June 24th of each year.

(13) North Tonawanda Fireworks Display, Tonawanda, NY.

(i) Location. All waters of the East Niagara River within a 500-foot radius of a barge located at position: 43°01′12″ N, 078°53′36″ W; in North Tonawanda, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 10:15 p.m. on July 4th of each year.

(14) Tonawanda's Canal Fest Fireworks, Tonawanda, NY.

(i) Location. All waters of the East Niagara River within a 500-foot radius of barge position: 43°01′12″ N, 078°53′36″ W; in Tonawanda, NY. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:30 p.m. to 10:30 p.m. on the fourth Sunday in July each year.

(15) Celebrate Erie Fireworks, Erie, PA.

(i) Location. All waters of Presque Isle Bay within an 800-foot radius of land position: 42°08′19″ N, 080°05′29″ W; at the end of Dobbins Landing Pier, Erie, PA. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 10:30 p.m. on the third weekend in August each year.

(16) Ashtabula Area Fireworks, Walnut Beach, Ashtabula, OH.

(i) Location. All waters of Lake Erie and Ashtabula Harbor within a 300-yard radius of land position: 41°54.167′ N, 080°48.416′ W; in Ashtabula, OH. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the second weekend in July each year.

(17) Fairport Harbor Mardi Gras, Fairport Harbor, OH.

(i) Location. All waters of Fairport Harbor and Lake Erie within a 300-yard radius of land position: 41°45.500′ N, 081°16.300′ W; east of the harbor entrance at Fairport Harbor Beach, OH. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first Saturday of July each year.

(18) Lake County Perchfest Fireworks, Fairport, OH.

(i) Location. All waters of Fairport Harbor and Lake Erie within a 300-yard radius of land position: 41°45.500′ N, 081°16.300′ W; in Fairport, OH. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the second weekend in September each year.

(19) Mentor Harbor Yacht Club Fireworks, Mentor Harbor, OH.

(i) Location. All waters of Lake Erie and Mentor Harbor within a 200-yard radius of 41°43.200′ N, 081°21.400′ W (west of the harbor entrance); in Mentor Harbor, OH. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first weekend in July each year.

(20) Browns Football Halftime Fireworks, Cleveland, OH.

(i) Location. All navigable waters of Cleveland Harbor and Lake Erie beginning in approximate land position: 41°30.823′ N, 081°41.620′ W (the northwest corner of Burke Lakefront Airport); continuing northwest to 41°31.176′ N, 081°41.884′ W; then southwest to 41°30.810′ N, 081°42.515′ W; then southeast to 41°30.450′ N, 081°42.222′ W (the northwest corner of dock 28 at the Cleveland Port Authority) then northeast back to the starting point at 41°30.823′ N, 081°41.620′ W. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective on a Sunday during the second or third Cleveland Brown's home game each year.

(21) City of Cleveland 4th of July Fireworks, Cleveland, OH.

(i) Location. All navigable waters of Cleveland Harbor and Lake Erie within a 400-yard radius of Main Entrance Light 5 (LLNR 4180) at position: 41°30.23′ N, 081°42.7′ W; in Cleveland, OH (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first weekend in July each year.

(22) Dollar Bank Jamboree Fireworks Display, Cleveland, OH.

(i) Location. All navigable waters of Cleveland Harbor and Lake Erie beginning at land position: 41°30.823′ N, 081°41.620′ W (the northwest corner of Burke Lakefront Airport); continuing northwest to 41°31.176′ N, 081°41.884′ W; then southwest to 41°30.810′ N, 081°42.515′ W; then southeast to 41°30.450′ N, 081°42.222′ W (the northwest corner of dock 28 at the Cleveland Port Authority) then northeast back to the starting point at 41°30.823′ N, 081°41.620′ W. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first weekend in July each year.

(23) Lakewood City Fireworks Display, Lakewood, OH.

(i) Location. All waters of Lake Erie within a 200-yard radius of land position: 41°29.755′ N, 081°47.780′ W (off of Lakewood Park); in Lakewood, OH. (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first weekend in July each year.

(24) Cleveland Yachting Club Fireworks Display, Rocky River, OH.

(i) Location. All waters of the Rocky River and Lake Erie within a 200-yard radius of land position 41°29.428′ N, 081°50.309′ W (DATUM: NAD 83) at Sunset Point on the western side of the mouth of the Rocky River in Cleveland, OH.

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the third weekend in July each year.

(25) Lorain 4th of July Celebration Fireworks Display, Lorain, OH.

(i) Location. All waters of Lorain Harbor within a 300-yard radius of land position 41°28.591′ N, 082°10.855′ W (DATUM: NAD 83), east of the harbor entrance on the end of the break wall near Spitzer's Marina.

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the first weekend in July each year.

(26) Lorain Port Fest Fireworks Display, Lorain, OH.

(i) Location. All waters of Lorain Harbor within a 250-yard radius of land position: 41°28.040′ N, 082°10.365′ W; in Lorain, OH (DATUM: NAD 83).

(ii) Enforcement date. This section is effective from 9:45 p.m. to 11 p.m. on the third weekend in July each year.

(b) Definitions. The following definitions apply to this section:

(1) Designated Representative means any Coast Guard commissioned, warrant, or petty officer designated by the Captain of the Port Buffalo 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.

(c) Regulations. (1) In accordance with the general regulations in section 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 representative.

(2)(i) These safety zones are closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated representative.

(ii) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or his designated representative.

(iii) Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

(3)(i)All vessels must obtain permission from the Captain of the Port or his designated representative to enter, move within, or exit the safety zone established in this section when this safety zone is enforced.

(ii) Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port or a designated representative.

(iii) While within a safety zone, all vessels must operate at the minimum speed necessary to maintain a safe course.

(d) Exemption. Public vessels, as defined in paragraph (b) of this section, are exempt from the requirements in this section.

(e) Waiver. For any vessel, the Captain of the Port Buffalo 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.

(f) Notification. The Captain of the Port Buffalo will notify the public that that the zones in this proposal are or will be enforced 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 cancelled.

§ 165.202

[Removed]

3. Remove and reserve § 165.202.

§ 165.914

[Removed]

4. Remove and reserve § 165.914.

Dated: May 9, 2008.

S.J. Ferguson,

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