[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Proposed Rules]
[Pages 40226-40229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14620]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2015-0492]
RIN 1625-AA00
Safety Zone; Lower Niagara River at Niagara Falls, New York
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish regulations for a
permanent safety zone within the Captain of the Port Zone Buffalo on
the Lower Niagara River, Niagara Falls, NY.
This proposed rule is intended to restrict vessels from a portion
of the Lower Niagara River considered not navigable as listed in the
United States Coast Pilot Book 6--Great Lakes: Lake Ontario, Erie,
Huron, Michigan and Superior and St. Lawrence River and more
specifically as described below. The safety zone to be established by
this proposed rule is necessary to protect the public and vessels from
the hazards associated with the heavy rapids in the narrow waterway of
the Lower Niagara River.
DATES: Comments and related materials must be received by the Coast
Guard on or before September 19, 2016.
ADDRESSES: You may submit comments identified by docket number USCG-
2015-0492 using any 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) Delivery: At the 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 SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email LTJG Amanda Garcia, Chief of Waterways Management,
U.S. Coast Guard Sector Buffalo; telephone
[[Page 40227]]
716-843-9322, email [email protected]. If you have
questions on viewing or submitting material to the docket, call Barbara
Hairston, Program Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
TFR Temporary Final Rule
A. 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.
1. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2015-0492), 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 at http://www.regulations.gov or by fax, mail, or hand delivery,
but please use only one of these means. If you submit a comment online,
it will be considered received by the Coast Guard when the comment is
successfully transmitted. If you fax, hand deliver, or mail your
comment, it will be considered received by the Coast Guard when the
comment is received at the Docket Management Facility. We recommend
that you include your name and a mailing address, an email 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,
type the docket number [USCG-2015-0492] in the ``SEARCH'' box and click
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with
this rulemaking.
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 rule
based on your comments.
2. 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,
type the docket number (USCG-2015-0492) in the ``SEARCH'' box and click
``SEARCH.'' Click on Open Docket Folder on the line associated with
this rulemaking. You may also visit 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.
3. Privacy Act
Anyone can search the electronic form of 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).
4. Public Meeting
We do not now plan to hold a separate public meeting on this
subject. You may submit a request for an additional and/or separate
meeting using one of the methods specified under ADDRESSES. Any
subsequent meetings held where public comment is sought to aid this
rulemaking will be held at a time and place announced by a later notice
in the Federal Register.
B. Regulatory History and Information
The Coast Guard has already established a permanent safety zone in
the Upper Niagara River per 33 CFR 165.902(a) to protect the boating
public from the dangers of the waters above and at Niagara Falls. These
waters include the United States waters of the Niagara River from the
crest of the American and Horseshoe Falls, Niagara Falls, New York to a
line drawn across the Niagara River from the downstream side of the
mouth of Gill Creek to the upstream end of the breakwater at the mouth
of the Welland River.
The heavy rapids in the section of the Lower Niagara River
downstream of Niagara Falls have not historically been subject to
regular navigation of vessels. In early 2014, the Captain of the Port
Zone Buffalo received reports of vessels transiting this section of the
Niagara River. These reports prompted further evaluation of the safety
of the entire waterway. This NPRM was not preceded by an Advance Notice
of Proposed Rulemaking (ANPRM), and thus no public comments have yet to
be received.
C. Basis and Purpose
Due to the reports of vessels transiting this section of the Lower
Niagara River an evaluation of the safety of navigation on the heavy
rapids was undertaken by federal, state, and local agencies that have
cognizance over the waterway. These agencies include the United States
Coast Guard, the New York Office of Parks, Recreation, and Historic
Preservation (OPRHP), and the New York State Park Police (NYSPP).
The purpose of the evaluation was to determine what, if any, rescue
capability exists that would be able to respond to vessels and/or
passengers in distress in the heavy rapids of the river south of the
whirlpool rapids to the International Railroad Bridge.
Currently, the only agencies that could possibly provide response
capabilities include the United States Coast Guard and the New York
State Park Police (NYSPP). The NYSPP, per a Memorandum of Agreement
between the New York State Office of Parks, Recreation and Historic
Preservation (OPRHP), the NYSPP, and the Coast Guard, is the Search and
Rescue Mission Coordinator (SMC) in the proposed area.
The NYSPP does not have search and rescue capabilities in these
waters beyond shore-based rescue and recovery. Additionally, applicable
New York state law prohibits launching a vessel in these areas. The
United States Coast Guard similarly is limited in its ability to
respond to any vessel casualty that may occur in these waters, as there
are neither vessel capabilities nor adequate air support in the area.
Accordingly, the Captain of the Port Zone Buffalo has determined
that no feasible rescue capability exists for vessels in distress or
persons in the water in the heavy rapids south of the whirlpool rapids
to the International Railroad Bridge. The Coast Guard proposes this
rulemaking under authority in 33 U.S.C. 1231
D. Discussion of Proposed Rule
With the aforementioned hazards and lack of adequate rescue
capability, the Captain of the Port Zone Buffalo proposes to establish
a permanent safety zone that will ensure the safety of the public.
(a) The proposed safety zone will encompass all waters of the Lower
[[Page 40228]]
Niagara River, Niagara Falls, NY from a straight line drawn from
position 43[deg]07'10.70'' N., 079[deg]04'02.32'' W. (NAD 83) and
43[deg]07'09.41'' N., 079[deg]04'05.41'' W. (NAD 83) just south of the
whirlpool rapids from the east side of the river to the international
border of the United States, to a straight line drawn from position
43[deg]06'34.01'' N., 079[deg]03'28.04'' W. (NAD 83) and
43[deg]06'33.52'' N., 079[deg]03'30.42'' W. (NAD 83) at the
International Railroad Bridge. Entry into, transiting, or anchoring
within the proposed safety zone is prohibited unless authorized by the
Captain of the Port Zone Buffalo.
E. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on these statutes or executive orders.
1. 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,
as supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS). We conclude that this proposed
rule is not a significant regulatory action because we anticipate that
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 legal or policy issues.
The safety zone created by this proposed rule will be relatively small
and is designed to minimize its impact on navigable waters.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider 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 will not have a significant economic impact on a
substantial number of small entities. This proposed rule may affect the
following entities, some of which might be small entities: The owners
or operators of vessels intending to transit in the portion of American
waters at the whirlpool rapids.
This proposed safety zone will not have a significant economic
impact on a substantial number of small entities for the following
reasons: There have not been a substantial number of small entities
attempting navigation on this section of the river.
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 proposed rule would economically affect it.
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants 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, above. The Coast Guard will not retaliate against
small entities that comment on this proposed rule or any policy or
action of the Coast Guard.
4. Collection of Information
This proposed rule will not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520.).
5. Federalism
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
determined that this rulemaking does not have implications for
federalism.
6. 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.
7. 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
proposed rule elsewhere in this preamble.
8. Taking of Private Property
This proposed rule would 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.
9. 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.
10. Protection of Children From Environmental Health Risks
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
would not create an environmental risk to health or risk to safety that
might disproportionately affect children.
11. 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.
12. Energy Effects
This proposed rule is not a ``significant energy action'' under
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.
[[Page 40229]]
13. Technical Standards
This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
14. Environment
We have analyzed this proposed 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 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 is
categorically excluded, under figure 2-1, paragraph (34)(g), of the
Commandant Instruction because it involves the establishment of a
safety zone.
A preliminary environmental analysis checklist and a preliminary
categorical exclusion determination are 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.
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
0
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
0
2. Add Sec. 165.902(b) to read as follows:
Sec. 165.902 Niagara River at Niagara Falls, New York--safety zone.
* * * * *
(b) The following is a safety zone--The United States waters of the
Lower Niagara River, Niagara Falls, NY from a straight line drawn from
position 43[deg]07'10.70'' N., 079[deg]04'02.32'' W. (NAD 83) and
43[deg]07'09.41'' N., 079[deg]04'05.41'' W. (NAD 83) just south of the
whirlpool rapids from the east side of the river to the international
border of the United States, to a straight line drawn from position
43[deg]06'34.01'' N., 079[deg]03'28.04'' W. (NAD 83) and
43[deg]06'33.52'' N., 079[deg]03'30.42'' W. (NAD 83) at the
International Railroad Bridge.
Dated: June 15, 2016.
B.W. Roche,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2016-14620 Filed 6-20-16; 8:45 am]
BILLING CODE 9110-04-P