[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