[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Rules and Regulations]
[Pages 31170-31172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12337]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0132]
RIN 1625-AA00


Safety Zone; 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 Cape May Harbor, Cape May Inlet, Atlantic Ocean, 
Delaware Bay, and Cape May Canal located in Cape May, NJ. This action 
is necessary to protect the surrounding public and vessels on these 
navigable waters during a paddleboat event. This regulation prohibits 
persons and vessels from entering, transiting, or remaining within the 
safety zone unless authorized by the Captain of the Port Delaware Bay 
or a designated representative.

DATES: This rule is effective from 8:30 a.m. to 1 p.m. on June 27, 
2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0132 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 Jennifer Padilla, 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 event. The rule must be in force 
by June 27, 2021. We are taking immediate action to ensure the safety 
of spectators and the general public from hazards associated with the 
paddleboat event.
    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.

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 a 
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. This rule is needed to protect 
personnel, vessels, and the public within the safety zone during the 
paddleboat event.

IV. Discussion of the Rule

    This rule establishes a temporary moving safety zone on the waters 
of Cape May Harbor, Cape May Inlet, Atlantic Ocean, Delaware Bay, and 
Cape May Canal located in Cape May, NJ, during a paddleboat event. The 
rule will be enforced from 8:30 a.m. to 1 p.m. on June 27, 2021. 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 trailing the last event participants, 
and at all times extend 100 yards on either side of safety vessels and 
participants. 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 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 Broadcast Notice to Mariners and by on-scene 
actual notice from designated representatives. The regulatory text we 
are proposing appears at the end of this document.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking.

[[Page 31171]]

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 following 
considerations: (1) The moving safety zone would move at the pace of 
event patrol vessels and participants, thus only impacting certain 
waters of Cape May Harbor, Cape May Inlet, Atlantic Ocean, Delaware 
Bay, and Cape May Canal for a limited time allowing for transiting 
vessels to adjust; and (2) 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 (3) the Coast Guard will provide advance notification of the moving 
safety zone to the local maritime community by 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 
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 
call or email 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.

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, Rev. 1, associated implementing instructions, 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 
moving safety zone that will prohibit persons and vessels from 
entering, transiting through, anchoring in, or remaining within a 
limited area on the navigable waters of Cape May Harbor, Cape May 
Inlet, Atlantic Ocean, Delaware Bay, and Cape May Canal located in Cape 
May, NJ, during a paddleboat event. It is categorically excluded from 
further review under paragraph L60(a) of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental 
Consideration supporting this determination is available in the docket. 
For instructions on locating the docket, see the ADDRESSES section of 
this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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:


[[Page 31172]]


    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.T05-0132 to read as follows:


Sec.  165.T05-0132   Safety Zone; Cape May, NJ.

    (a) Location. The following area is a moving safety zone: 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 100 yards on either side of 
participant and safety vessels during the 2021 DeSatnick Foundation 
Cape to Cape Paddleboat event. The safety zone will move with the 
safety vessels and participants as they transit the waters east through 
Cape May Harbor, south through Cape May Inlet, west through the 
Atlantic Ocean, north through the Delaware Bay, then east through Cape 
May Canal, and terminate at the Lost Fishermen's Memorial in Cape May 
Harbor. 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 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 rule will be enforced from 8:30 a.m. 
to 1 p.m. on June 27, 2021.

    Dated: June 4, 2021.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2021-12337 Filed 6-10-21; 8:45 am]
BILLING CODE 9110-04-P