[Federal Register Volume 86, Number 158 (Thursday, August 19, 2021)]
[Rules and Regulations]
[Pages 46603-46605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17751]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0549]
RIN 1625-AA00


Safety Zone; New York Upper Bay, Pierhead Channel, and Port 
Jersey Channel, Bayonne, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters of New York Upper Bay, Pierhead Channel, and Port 
Jersey Channel within 100 yards of the Bayonne Peninsula bulkhead. The 
safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by two building demolitions 
on shore. When enforced, entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port of 
New York or a designated representative.

DATES: This rule is effective without actual notice from August 19, 
2021, through October 31, 2021. For the purposes of enforcement, actual 
notice will be used from August 8, 2021 through August 19, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0549 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email MST1 Jaison Kurian, Waterways Management Division, U.S. 
Coast Guard; telephone 718-354-4352, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
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 immediate action is needed to 
safeguard the public. Two brick and concrete rebar reinforced buildings 
(Numbers 32 and 42), six and one-half stories tall and located along 
the south shore of the Bayonne Peninsula are being demolished using 
land based explosives and immediate action is needed to respond to the 
potential safety hazards associated with this activity. It is 
impracticable to publish an NPRM because we must establish this safety 
zone by August 8, 2021. This rule is enforceable through October 31, 
2021 as a contingency for any unforeseen delays or revisions to the 
building demolitions.
    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 protect the public from the potential safety hazards 
associated with this activity.

[[Page 46604]]

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 New York 
(COTP) has determined that potential hazards associated with explosives 
demolition of two buildings on August 8, 2021, will be a safety concern 
for anyone within the waters of New York Upper Bay, Pierhead Channel, 
and Port Jersey Channel within 100 yards of the Bayonne Peninsula, New 
Jersey bulkhead. The rule is needed to protect personnel, vessels, and 
the marine environment in the navigable waters within the safety zone 
while the two buildings are being demolished.

IV. Discussion of the Rule

    This rule establishes a safety zone from August 8 through October 
31, 2021. The safety zone will cover all navigable waters within 100 
yards of the Bayonne Peninsula, New Jersey. The zone will only be 
enforced during explosives loading and demolition of two onshore 
bulidings tentatively scheduled from 6:00 a.m. to 11:00 a.m. on Sunday, 
August 8, 2021. The duration of the zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters while the explosives are being loaded into the two buildings and 
the two buildings are being demolished. No vessel or person will be 
permitted to enter the safety zone without obtaining permission from 
the COTP or a designated representative.

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 the size, 
location, time of-day on a Sunday morning, and the duration of 
enforcement of the safety zone. The Port Authority of NY/NJ, demolition 
contractor, and the owner of the two buildings have coordinated the 
building demolitions with berth operators at the Bayonne Peninsula, New 
Jersey to minimize impacts. The Bayonne Golf Club, west of the safety 
zone, has also been notified and ferries transiting to the golf club 
will be authorized to transit through the 100 yard safety zone from 6 
a.m. to 10 a.m. prior to the building demolitions. Vessels berthing at 
the Global Container Terminal, on the opposite side of Port Jersey 
Channel, will be outside of the safety zone and not expected to be 
impacted. Moreover, the Coast Guard will issue Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the zone and the rule 
allows vessels to seek permission to enter the zone.

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 
safety zone lasting only five hours that will

[[Page 46605]]

prohibit entry within waters of New York Upper Bay, Pierhead Channel, 
and Port Jersey Channel within 100 yards of the Bayonne Peninsula, New 
Jersey bulkhead. It is categorically excluded from further review under 
paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manul 023-
01-001-01, Rev. 01. 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 record 
keeping 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.T01-0549 to read as follows:


Sec.  165.T01-0549  Safety Zone; New York Upper Bay, Pierhead Channel, 
and Port Jersey Channel, Bayonne, NJ.

    (a) Location. The following area is a safety zone: All navigable 
waters of New York Upper Bay, Pierhead Channel, and Port Jersey 
Channel, from surface to bottom, within 100 yards of the Bayonne 
Peninsula bulkhead bound by the following points beginning at 
40[deg]40'20.1'' N, 074[deg]05'22.6'' W thence to 40[deg]40'10.3'' N, 
074[deg]04'54.5'' W; thence to 40[deg]39'49.9'' N, 074[deg]04'06.1'' W; 
thence to 40[deg]39'38.6'' N, 074[deg]04'14.6'' W; thence to 
40[deg]39'59.4'' N, 074[deg]05'08.2'' W; thence to 40[deg]40'03.5'' N, 
074[deg]05'22.6'' W; thence to the point of origin at 40[deg]40'20.1'' 
N, 074[deg]05'22.6'' W. These coordinates are based on NAD 83.
    (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 New York (COTP) in the enforcement of 
the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subapart 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, contact the COTP or the COTP's 
representative by VHF-Channel 16 or at 718-354-4353. 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.
    (d) Enforecement period[s]. This section is effective from August 8 
through October 31, 2021, but will only be enforced when building 
demoltion operations are in progress.

    Dated: August 3, 2021.
Zeita Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2021-17751 Filed 8-18-21; 8:45 am]
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