[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Rules and Regulations]
[Pages 32272-32274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14420]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0537]
RIN 1625-AA00


Safety Zone; New Jersey Intracoastal Waterway, Atlantic City, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain navigable waters of the New Jersey Intracoastal Waterway. The 
safety zone is needed to protect participants of the Jim Whelan Open 
Water Festival on these navigable waters near Atlantic City, NJ, during 
a swim event on July 14, 2019. This regulation prohibits non-
participant persons and vessels from entering, transiting through, 
anchoring in, or remaining within the safety zone unless authorized by 
the Captain of the Port (COTP) Delaware Bay or a designated 
representative.

DATES: This rule is effective from 5 p.m. through 9 p.m. on July 14, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0537 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 about this rule, 
call or email Petty Officer Thomas Welker, U.S. Coast Guard Sector 
Delaware Bay, Waterways Management Division; telephone 215-271-4814, 
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
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

    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 because it is impracticable and contrary to 
the public interest to do so. There is insufficient time to allow for a 
reasonable comment period prior to the date of the event. We are taking 
immediate action to ensure the safety of participants and the general 
public from hazards associated with non-participant vessel movement 
near the swim event. It is impracticable and contrary to the public 
interest to publish an NPRM because we must establish this safety zone 
by July 14, 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 the rule must be in effect by July 14, 2019, to mitigate the 
potential safety hazards associated with the swim event.

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). Green Whales Inc. notified the Coast 
Guard that it will host the inaugural Jim Whelan Open Water Festival on 
July 14, 2019. The event will include a 400-meter swim with up to 50 
participants and a 2-kilometer swim with up to 150 participants. The 
swim courses are on the waters of the New Jersey Intracoastal Waterway 
in Atlantic City, NJ. The Captain of the Port Delaware Bay (COTP) has 
determined that potential hazards associated with this swim event 
scheduled for July 14, 2019, will be a safety concern for participants 
and for vessels operating within the specified waters of the New Jersey 
Intracoastal Waterway. The purpose of this rulemaking is to protect 
participants, spectators, and transiting vessels on certain waters of 
the New Jersey Intracoastal Waterway before, during, and after the 
scheduled event.

IV. Discussion of the Rule

    This rule establishes a safety zone from 5 p.m. until 9 p.m. on 
July 14, 2019. The safety zone will cover navigable waters of the New 
Jersey Intracoastal Waterway between the Albany Avenue (Highway 40) 
bridge in the southwest and New Jersey Intracoastal Waterway Daybeacon 
204 in the northeast. Paragraph (a) of the regulation text below 
provides a detailed description of the location. The duration of the 
zone is intended to ensure the safety of participants and vessels on 
these navigable waters before, during, and after the swim event 
scheduled from 6 p.m. to 8 p.m. on July 14, 2019. No person or vessel 
will be permitted to enter, transit through, anchor in, or remain 
within the safety zone without obtaining permission from the COTP 
Delaware Bay or a designated representative. If the COTP Delaware Bay 
or a designated representative grants authorization to enter, transit 
through, anchor in, or remain within the safety zone, all persons and 
vessels receiving such authorization must comply with the instructions 
of the COTP Delaware Bay or a designated representative. The Coast 
Guard will provide public notice of the safety zone by Local Notice to 
Mariners and Broadcast Notice to Mariners.

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.
    The impact of this rule is not significant for the following 
reasons: (1) The enforcement period will last four hours when vessel 
traffic is usually low; (2) although non-participant persons and 
vessels may not enter, transit through, anchor in, or remain with the 
safety zone without authorization from the COTP Delaware Bay or a 
designated representative, surrounding channels within the New Jersey 
Intracoastal Waterways will remain unaffected. Persons and vessels will 
be able to operate in the surrounding area during the enforcement 
period; (3) persons and vessels will still be able to enter, transit 
through, anchor in, or remain within the regulated area if authorized 
by the

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COTP Delaware Bay or a designated representative; and (4) the Coast 
Guard will provide advance notification of the safety zone to the local 
maritime community by Local Notice to Mariners, Broadcast Notice to 
Mariners, and on-scene actual notice from designated representatives.

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 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 lasting only 4 hours that 
will prohibit entry within certain navigable waters during a swim 
event. It is categorically excluded from further review under paragraph 
L60(a) 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; 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.T05-0537 to read as follows:


Sec.  165.T05-0537  Safety Zone; New Jersey Intracoastal Waterway, 
Atlantic City, NJ.

    (a) Location. The following area is a safety zone: All navigable 
waters of the New Jersey Intracoastal Waterway in Atlantic City, NJ, 
within the polygon bounded by the following: Originating at the 
southeast portion of the Albany Avenue Bridge where the bridge crosses 
the shoreline at approximate position latitude 39[deg]21'12'' N, 
longitude 074[deg]27'23'' W; thence northeasterly along the shoreline 
to latitude 39[deg]21'43'' N, longitude 074[deg]26'41'' W; thence west 
across the New Jersey Intracoastal Waterway to the shoreline at 
latitude 39[deg]21'42'' N, longitude 074[deg]26'51'' W; thence west 
along the shoreline to latitude 39[deg]21'41'' N, longitude 
074[deg]26'55'' W; thence southwest across the mouth of Beach Thorofare 
to the shoreline at latitude 39[deg]21'33'' N, longitude 
074[deg]27'07'' W; thence southwest along the shoreline to the 
northeast portion of the Albany Avenue Bridge where the bridge crosses 
the shoreline at approximate position latitude 39[deg]21'15'' N, 
longitude 074[deg]27'24'' W; thence south along the eastern, outermost 
edge of the bridge to the point of origin.

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    (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.
    (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) 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 
approximately (but no earlier than) 5 p.m. to approximately (but not 
later than) 9 p.m. on July 14, 2019.

    Dated: June 28, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2019-14420 Filed 7-5-19; 8:45 am]
BILLING CODE 9110-04-P