[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Rules and Regulations]
[Pages 43087-43089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16813]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2021-0146]
RIN 1625-AA08


Special Local Regulation; Delaware Bay, Lower Township, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a special local regulation for 
certain navigable waters of the Delaware Bay. This action is necessary 
to provide safety of life on these navigable waters near Lower 
Township, NJ, during a swimming competition on August 29, 2021. This 
regulation prohibits persons and vessels from entering, transiting, or 
remaining within the regulated area unless authorized by the Captain of 
the Port Delaware Bay or a designated representative.

DATES: This rule is effective from 6:30 a.m. through 9:30 a.m. on 
August 29, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0146 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

[[Page 43088]]

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. Notice to 
the Coast Guard did not provide sufficient time to allow for a 
reasonable comment period prior to the event. The rule must be in force 
by August 29, 2021. We are taking immediate action to ensure the safety 
of spectators and the general public from hazards associated with a 
large number of persons participating in a swimming competition.
    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 because immediate action is needed to 
respond to the potential safety hazards associated with this event.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70041. The Captain of the Port Delaware Bay (COTP) has determined that 
potential hazards associated with the swimming competition will be a 
safety concern due to vessel traffic operating in proximity to a large 
number of swimmers. This rule is needed to protect personnel, vessels, 
and the public within the regulated area during the swimming 
competition.

IV. Discussion of the Rule

    This rule establishes a special local regulation on all navigable 
waters of the Delaware Bay in Lower Township, NJ, bounded by a line 
drawn from: Latitude 39[deg]0'57'' N, longitude 074[deg]56'56'' W in 
Villas, NJ, thence west to latitude 39[deg]00'59'' N, longitude 
074[deg]57'15'' W, thence south to latitude 38[deg]58'08'' N, longitude 
074[deg]58'11'' W, thence east to latitude 38[deg]58'04'' N, longitude 
074[deg]57'54'' W in North Cape May, NJ, thence north along the 
shoreline to the point of origin. The rule will be enforced from 6:30 
a.m. to 9:30 a.m. on August 29, 2021. No person or vessel will be 
permitted to enter, transit through, anchor in, or remain within the 
regulated area without obtaining permission from the COTP Delaware Bay 
or a designated representative. If authorization to enter, transit 
through, anchor in, or remain within the regulated area 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 regulated area by 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. 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).
    This regulatory action determination is based on size, time of day, 
and duration of the regulated area, which would impact a small 
designated area of the Delaware Bay for three and one half hours. The 
regulated area does not include any marinas, piers, or other areas used 
to launch vessels. The Coast Guard will issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the status of the regulated 
area. This regulatory action determination is based on the following 
considerations: (1) Vessel traffic will be able to safely transit 
around this safety zone which would impact a small designated area of a 
Lower Township, NJ, for three and a half hours during the event; (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 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 
regulated area may be small entities, for the reasons stated in section 
V 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

[[Page 43089]]

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 
special local regulation that will prohibit persons and vessels from 
entering, transiting through, anchoring in, or remaining within a 
limited area on the navigable water on a portion of the Delaware Bay in 
Lower Township, NJ, during a swimmimg competition lasting approximately 
three and one half hours. 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 100

    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 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority: 46 U.S.C. 70041; 33 CFR 1.05-

0
2. Add Sec.  100.T05-0146 to read as follows:


Sec.  100.T05-0146;  Special Local Regulation; Delaware Bay, Lower 
Township, NJ.

    (a) Location. The following location is a regulated area. All 
navigable waters of the Delaware Bay in Lower Township, NJ, bounded by 
a line drawn from: Latitude 39[deg]0'57'' N, longitude 074[deg]56'56'' 
W in Villas, NJ, thence west to latitude 39[deg]00'59'' N, longitude 
074[deg]57'15'' W, thence south to latitude 38[deg]58'08'' N, longitude 
074[deg]58'11'' W, thence east to latitude 38[deg]58'04'' N, longitude 
074[deg]57'54'' W in North Cape May, NJ, thence north along the 
shoreline 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 
regulated area.
    (c) Regulations. (1) The COTP Delaware Bay or a designated 
representative may forbid and control movement of all vessels and 
persons, including event participants, in the regulated area. When 
hailed or signaled by an official patrol, a vessel or person in the 
regulated area shall immediately comply with the directions given by 
the patrol. Failure to do so may result in the Coast Guard expelling 
the person or vessel from the area, issuing a citation for failure to 
comply, or both. The COTP Delaware Bay or a designated representative 
may terminate the event, or a participant's operations at any time the 
COTP Delaware Bay or designated representative believes it necessary to 
do so for the protection of life or property.
    (2) To seek permission to enter or remain in the regulated area, 
contact the COTP or the COTP's representative via VHF-FM channel 16 or 
215-271-4807. Those in the regulated area 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 regulated area by Federal, State, and local 
agencies.
    (e) Enforcement period. This zone will be enforced from 6:30 a.m. 
through 9:30 a.m. on August 29, 2021.

    Dated: August 3, 2021.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2021-16813 Filed 8-5-21; 8:45 am]
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