[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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