[Federal Register Volume 84, Number 110 (Friday, June 7, 2019)]
[Rules and Regulations]
[Pages 26569-26571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11964]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0435]
RIN 1625-AA00


Safety Zone, Dive Operations; Cape May Canal, Cape May, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 100-yard radius of all vessels and equipment 
involved in diving and debris removal operations within the Cape May 
Canal in Cape May, New Jersey. The safety zone is needed to protect 
personnel, vessels, and the marine environment from potential hazards 
created by dive operations and debris removal near the railroad bridge 
in the Cape May Canal. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
Delaware Bay or his designated representative.

DATES: This rule is effective without actual notice from June 7, 2019 
through 4 p.m. on June 13, 2019. For the purposes of enforcement, 
actual notice will be used from 6 a.m. on June 3, 2019, through June 7, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0435 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Edmund Ofalt, U.S. Coast Guard Sector 
Delaware Bay, Waterways Management Division; telephone 215-271-4889, 
email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    In mid-May, the Coast Guard was notified that part of the fendering 
system for the Cape May Canal Railroad Bridge failed and fell into the 
Cape May Canal. The bridge owner has contracted services needed to 
remove the debris and, with it, the hazard it poses to waterway 
users.\1\ Due to potential dangers associated with the debris removal, 
the Captain of the Port Delaware Bay (COTP) has determined that a 
safety zone is necessary to protect personnel, vessels, and the marine 
environment while the debris is recovered.
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    \1\ While the fallen debris poses a potential hazard to waterway 
users, due to the depth of the water, the Coast Guard has determined 
that waterway restrictions have not been needed to adequately 
address the threat prior to this time. The Coast Guard has been 
issuing safety marine information broadcasts every 6 hours to 
mariners regarding the hazard.
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    The Coast Guard is issuing this temporary 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. It is impracticable and contrary to the 
public interest to publish an NPRM because immediate action is needed 
to respond to the potential safety hazards associated with dive 
operations and debris removal scheduled to take place on June 3, 2019.
    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. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest 
because

[[Page 26570]]

immediate action is needed to respond to the potential safety hazards 
associated with dive operations and debris removal. The rule must be in 
place by the time the dive operations and debris removal occur on June 
3, 2019, to protect personnel, vessels, and the marine environment 
while the debris is recovered.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that 
potential hazards associated with diving and debris removal operations 
starting June 3, 2019, will be a safety concern for anyone within a 
100-yard radius of associated dive vessels and working barges. This 
rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone during 
diving and debris removal operations.

IV. Discussion of the Rule

    This rule establishes a safety zone from 6 a.m. on June 3, 2019 
through 4 p.m. on June 13, 2019. The safety zone will cover all 
navigable waters within 100 yards of dive vessels and working barges 
being used for dive and debris recovery operations. Dive vessels and 
working barges refers to those vessels used as dive platforms and 40 
foot by 15 foot flexi-float barges utilized for the purpose of debris 
removal. The duration of the zone is intended to protect personnel, 
vessels, and the marine environment in these navigable waters while the 
debris is recovered. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP or his 
designated representative. Vessels with a beam greater than 15 feet 
must contact the working vessels via VHF-FM channel 13 or 16 at least 
30 minutes prior to arrival in order to arrange safe passage.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size and 
duration of the zone. Small vessels with a beam less than 15 feet will 
generally be able to pass through the zone as needed upon receiving 
authorization from the COTP or his designated representative. Vessels 
with a beam greater than 15 feet will be able to pass through the zone 
if at least 30 minutes notice is given prior to arrival. Diving and 
debris recovery operations will only take place from 7 a.m. through 4 
p.m. daily beginning June 3, 2019 through June 13, 2019.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 rule 
will not have a significant economic impact on a substantial number of 
small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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. 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 
section.
    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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    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 rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), 
which guide the Coast Guard in

[[Page 26571]]

complying with the National Environmental Policy Act of 1969 (42 U.S.C. 
4321-4370f), and have determined 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 rule involves a safety zone that 
will prohibit entry within 100 yards of dive vessels and working barges 
being used for diving and debris recovery operations in the Cape May 
Canal. It is categorically excluded from further review under paragraph 
L[60a] in Table 3-1 of U.S. Coast Guard Environmental Planning 
Implementing Procedures 5090.1. A Record of Environmental Consideration 
supporting this determination is available in the docket where 
indicated under ADDRESSES.

G. 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.

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 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:  46 U.S.C. 70034, 70051; 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.T05-0435 to read as follows:


Sec.  165.T05-0435  Safety Zone, Dive Operations; Cape May Canal, Cape 
May, NJ.

    (a) Location. The following area is a safety zone: All navigable 
waters within 100 yards of dive vessels and working barges being used 
for diving and debris recovery operations within the Cape May Canal.
    (b) Definitions As used in this section--
    Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard petty officer, warrant or commissioned officer 
on board a Coast Guard vessel or on board a federal, state, or local 
law enforcement vessel assisting the Captain of the Port (COTP), 
Delaware Bay in the enforcement of the safety zone.
    Working barges means those vessels associated with debris removal 
near the Cape May Canal Railroad Bridge in the Cape May Canal.
    Dive vessels means those vessels used for dive operations, and 
marked appropriately in accordance with navigation rules of the road, 
which are associated with debris removal near the Cape May Canal 
Railroad Bridge in the Cape May Canal.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter or remain in the zone, contact the 
COTP or the COTP's representative via VHF-FM channel 16 or 215-271-
4807. Those in the safety zone must comply with all lawful orders or 
directions given to them by the COTP or the COTP's designated 
representative.
    (3) Vessels with a beam greater than 15 feet must contact working 
vessels, via VHF-FM channel 13 or 16, at least 30 minutes prior to 
arrival in order to arrange safe passage.
    (4) This section applies to all vessels except those engaged in law 
enforcement, aids to navigation servicing, and emergency response 
operations.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement period. This zone will be enforced from 6 a.m. on 
June 3, 2019, through 4 p.m. on June 13, 2019.

    Dated: May 31, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2019-11964 Filed 6-6-19; 8:45 am]
 BILLING CODE 9110-04-P