[Federal Register Volume 84, Number 149 (Friday, August 2, 2019)]
[Rules and Regulations]
[Pages 37770-37772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16544]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0542]
RIN 1625-AA00


Safety Zone; Delaware Bay, Lewes, DE to Cape May, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary moving safety zone 
on the waters of Delaware Bay, between Lewes, Delaware, and Cape May, 
New Jersey, from 8 a.m. through 3 p.m. on August 18, 2019, during the 
2019 DeSatnick Foundation Cape to Cape Paddle. The safety zone is 
necessary to ensure the safety of participant vessels, spectators, and 
the boating public during the event. This regulation prohibits persons 
and non-participant 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 8 a.m. through 3 p.m. on August 18, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0542 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 
proposed rulemaking, call or email Petty Officer Thomas Welker, Sector 
Delaware Bay, Waterways Management Division, U.S. Coast Guard, 
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. The rule must 
be in force by August 18, 2019. We are taking immediate action to 
ensure the safety of event participants, commercial traffic, and the 
general public from hazards associated with a paddleboat event crossing 
the Delaware Bay.
    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 immediate action is needed to mitigate the potential safety 
hazards associated with a paddleboat event in this location by August 
18, 2019.

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 Captain of the Port Delaware Bay 
(COTP) has determined that potential hazards associated with this 
paddleboat event will be a safety concern for anyone within 50 yards in 
front of the lead safety vessel preceding the first event participants, 
to 50 yards behind the safety vessel trailing the last event 
participants, and at all times, extend 100 yards on either side of the 
safety vessels and participants. The purpose of this rule is to ensure 
safety of event participants, commercial traffic, and the general 
public during the scheduled event.

IV. Discussion of the Rule

    This rule establishes a temporary moving safety zone on certain 
navigable waters in the Delaware Bay, between Lewes, Delaware, and Cape 
May, New Jersey, during the 2019 DeSatnick Cape to Cape Paddle. The 
moving safety zone encompasses all waters within 50 yards in front of 
the lead safety vessel preceding the first event participants, to 50 
yards behind the safety vessel trailing the last event participants, 
and at all times extend 100 yards on either side of safety vessels and 
participants.
    The marine event course begins at the Lewes Ferry Terminal in 
Lewes, Delaware, moves north through the main shipping channel, and 
terminates at the Queen Street beach in Cape May, New Jersey. The event 
is scheduled to take place from 8 a.m. to 3 p.m. on August 18, 2019. 
There are approximately 50 participants anticipated as well as multiple 
safety vessels including private vessels and vessels from multiple 
local, state, and federal agencies.
    No person or non-participant 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 authorization to enter, transit through, anchor in, 
or remain within the safety zone is granted by the COTP Delaware Bay or 
a designated representative, 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, Broadcast Notice 
to Mariners, and by on-scene actual notice from designated 
representatives.

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, the NPRM has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt

[[Page 37771]]

from the requirements of Executive Order 13771.
    The impact of this rule is not significant for the following 
reasons: (1) Although persons and vessels would not be able to enter, 
transit through, anchor in, or remain within the safety zone without 
authorization from the COTP Delaware Bay or a designated 
representative, they would be able to operate in the surrounding area 
during the enforcement period; (2) persons and vessels would still be 
able to enter, transit through, anchor in, or remain within the 
regulated area if authorized by the COTP Delaware Bay or a designated 
representative; (3) the safety zone would move at the pace of event 
patrol vessels and participants, thus only impacting certain waters of 
the Delaware Bay for a limited time allowing for transiting vessels to 
adjust; and (4) the Coast Guard would provide advance notification of 
the safety zone to the local maritime community by Local Notice to 
Mariners, Broadcast Notice to Mariners, or by 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 
IV.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 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

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 made 
a 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 rule involves establishing a moving safety zone 
that would prohibit persons and vessels from entering, transiting 
through, anchoring in, or remaining within a limited area on the 
navigable water in the Delaware Bay, during a paddleboard marine event 
lasting approximately six hours. Normally, such actions are 
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 (REC) 
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, 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.T05-0542 to read as follows:


Sec.  165.T05-0542   Safety Zone; Delaware Bay, Lewes, DE to Cape May, 
NJ.

    (a) Location. The moving safety zone will encompass all waters 
within 50 yards in front of the lead safety vessel preceding the first 
event participants, to 50 yards behind the safety vessel

[[Page 37772]]

trailing the last event participants, and 100 yards on either side of 
participant and safety vessels during the 2019 DeSatnick Foundation 
Cape to Cape Paddleboard event. The safety zone will move with the 
safety vessels and participants as they transit from the Lewes Ferry 
Terminal in Lewes, Delaware, moving north through the Delaware Bay main 
shipping channel, and terminate at the Queen Street Beach in Cape May, 
New Jersey. The safety zone will move at the pace of event patrol 
vessels and participants.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sector Delaware Bay in the enforcement of the 
safety zone.
    (c) Regulations. (1) All non-participant persons and vessels are 
prohibited from entering, transiting through, anchoring in, or 
remaining within the regulated areas unless authorized by official 
event patrol. Vessels already moored or anchored may stay moored or 
anchored within the zone, but must be authorized by the designated 
representative prior to transiting within the zone.
    (2) Designated representatives may control vessel traffic 
throughout the regulated areas as determined by the prevailing 
conditions.
    (3) Persons and vessels may request authorization to enter, transit 
through, anchor in, or remain within the regulated areas by contacting 
the Captain of the Port or a designated representative via VHF radio on 
channel 13 or 16.
    (4) If authorization is granted by the Captain of the Port or a 
designated representative, all persons and vessels receiving such 
authorization must comply with the instructions of the Captain of the 
Port or a designated representative.
    (d) Enforcement period. This rule will be enforced from 8 a.m. 
through 3 p.m. on August 18, 2019, unless cancelled earlier by the 
Captain of the Port.

    Dated: July 29, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2019-16544 Filed 8-1-19; 8:45 am]
BILLING CODE 9110-04-P