
[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 SectorBuffaloMarineSafety@uscg.mil. 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

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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.

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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


