[Federal Register Volume 84, Number 177 (Thursday, September 12, 2019)]
[Rules and Regulations]
[Pages 48066-48068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19737]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0719]
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 4th Annual Ironman
70.3 Atlantic City Triathlon on these navigable waters near Atlantic
City, NJ, during a swim event on September 15, 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 5:30 a.m. through 10:30 a.m. on
September 15, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0719 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
This swim event is listed in the table to 33 CFR 110.506, section
(a), row (2), but because this year's course location has expanded
beyond the previously published boundaries, we are issuing a new
temporary rule to ensure coverage over the event location.
Additionally, we are using ``Safety Zone'' authorities to issue this
rule instead of the ``Special Local Regulation'' authorities under
which we published the permanent rule for this event.
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
[[Page 48067]]
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 September 15, 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 September 15, 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). DelMoSports, LLC notified the Coast
Guard that it will host the 4th Annual Ironman 70.3 Atlantic City
Triathlon on September 15, 2019. The event will include a 1.2-mile swim
with up to 2800 participants. The swim course is 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 September 15, 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 5:30 a.m. until 10:30 a.m.
on September 15, 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 5:30 a.m. to 10:30 a.m. on September 15, 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 five 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 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).
[[Page 48068]]
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.T05-0719 to read as follows:
Sec. 165.T05-0719 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]21'35'' N, longitude
074[deg]27'06'' 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]21'16'' N,
longitude 074[deg]27'26'' W; thence south along the eastern, outermost
edge of the bridge to the point of origin.
(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) 5:30 a.m. to approximately (but not
later than) 10:30 a.m. on September 15, 2019.
Dated: September 6, 2019.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Acting Captain of the Port Delaware Bay.
[FR Doc. 2019-19737 Filed 9-11-19; 8:45 am]
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