2014-23659. Safety Zone, Navy Exercise, Delaware Bay and Atlantic Ocean; Cape May, NJ

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing three temporary safety zones on the waters of the Delaware Bay and North Atlantic Ocean adjacent to Cape May, New Jersey. The safety zones will restrict vessel traffic on a portion of the Delaware Bay and North Atlantic Ocean while a Navy exercise is taking place. These temporary safety zones are necessary to protect the surrounding public and vessels from the hazards associated the exercise.

DATES:

This rule is effective October 3, 2014 through October 24, 2014 and will be enforced from October 16, 2014 to October 24, 2014 from 6:00 a.m. until 8:00 p.m. each day.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2014-0855]. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email If you have questions on this temporary rule, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone [phone], email [e-mail]. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

The Coast Guard is issuing this final 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 as publishing an NPRM is impracticable given that the final details for this event were not received by the Coast Guard until September 8, 2014, and this exercise is scheduled to take place from October 16, 2014 to October 24, 2014. Further, allowing this event to go forward without these safety zones in place would expose mariners and the public to unnecessary dangers associated with this exercise contrary to the public interest. Vessels transiting or attempting to transit through these areas may be at risk, and therefore the safety zones are needed to protect the public from the hazards associated with this exercise. Therefore, delay in taking action is both impracticable and contrary to public interest.

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 as any delay encountered in this regulation's effective date would be contrary to public interest because immediate action is needed to provide for the safety of life and property from the hazards associated with the naval exercise.

B. Basis and Purpose

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

From October 16, 2014, until October 24, 2014, a Navy exercise will take place in a portion of the Delaware Bay and the North Atlantic Ocean near Cape May, New Jersey. This regulation is necessary because of the ongoing hazards associated with the exercise. Once operations are concluded, an informational broadcast will inform mariners that the saftey zone is no longer being enforced. The Captain of the Port is establishing this safety zone to ensure the safety of life and property of all mariners and vessels transiting the local area.

C. Discussion of the Final Rule

To mitigate the risks associated with the Navy exercise, the Captain of the Port, Sector Delaware Bay will enforce temporary safety zones in Delaware Bay and the North Atlantic Ocean near Cape May, New Jersey. The safety zones will encompass two areas within Delaware Bay and one area in the North Atlantic Ocean.

The first safety zone will encompass all waters of the Delaware Bay, bounded by a line connecting the following points; latitude 38°54′10″ N, longitude 075°03′12″ W thence north to latitude 39°02′24″ N, longitude 075°02′38″ W thence east to latitude 39°02′24″ N, longitude 075°01′42″ W thence southeast to latitude 38°54′22″ N, longitude 075°01′18″ W thence west to point of origin.

The second safety zone will encompass all waters of the Delaware Bay bounded by a line connecting the following points; latitude 38°54′17″ N, longitude 075°07′50″ W thence northwest to latitude 39°04′06″ N, longitude 075°13′54″ W thence northeast to latitude 39°04′39″ N, longitude 074°12′39″ W thence southeast to latitude 38°55′04″ N, longitude 075°06′38″ W thence southwest to point of origin.

The third safety zone will encompass a portion of the North Atlantic Ocean bounded by a line connecting the following points; latitude 38°49′57″ N, longitude 074°47′41″ W thence northeast to latitude 38°54′28″ N, longitude 074°43′15″ W thence southeast to latitude 38°54′11″ N, longitude 074°42′45″ W thence southwest to latitude 38°49′39″ N, longitude 074°47′10″ W thence northwest to point of origin, off the coast of Cape May, NJ.

All of the safety zones will be effective and enforced from October 16, 2014 to October 24, 2014 from 6:00 a.m. until 8:00 p.m. each day. Entry into, transiting, or anchoring within the safety zone is prohibited.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) the Coast Guard will make extensive notification of the Safety Zone to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) this rule will be enforced until the area is deemed safe to transit.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 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. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to anchor or transit along a portion of Delaware Bay and North Atlantic Ocean adjacent to Cape May, New Jersey from October 16, 2014 to October 24, 2014 from 6:00 a.m. until 8:00 p.m. each day, unless cancelled earlier by the Captain of the Port once all operations are completed. Once operations are concluded, an informational broadcast will inform mariners that the safety zone is no longer being enforced.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: the zone is limited in size and duration. Sector Delaware Bay will issue maritime advisories widely available to users of the Delaware River.

3. Assistance for Small Entities

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, above.

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.

4. 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).

5. Federalism

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 determined that this rule does not have implications for federalism.

6. 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.

7. 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

9. Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

10. Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

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.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(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 implementation of regulations within 33 CFR Part 165, applicable to safety zones on the navigable waterways. The zones will temporarily restrict vessel traffic from transiting a portion of the Delaware Bay and North Atlantic Ocean in vicinity of Cape May, New Jersey, in order to protect the safety of life and property on the waters until the exercise is complete. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1

2. Add temporary § 165.T05-0855 to read as follows

§ 165.T05-0855

Safety Zones, Navy Exercise, Delaware Bay and Atlantic Ocean; Cape May, NJ.

(a) Regulated area. The following areas are safety zones: (1) All waters of the Delaware Bay, bounded by a line connecting the following points: s all waters of the Delaware Bay, bounded by a line connecting the following points; latitude 38°54′10″ N, longitude 075°03′12″ W thence north to latitude 39°02′24″ N, longitude 075°02′38″ W thence east to latitude 39°02′24″ N, longitude 075°01′42″ W thence southeast to latitude 38°54′22″ N, longitude 075°01′18″ W thence west to point of origin.

(2) All waters of the Delaware Bay bounded by a line connecting the following points; latitude 38°54′17″ N, longitude 075°07′50″ W thence northwest to latitude 39°04′06″ N, longitude 075°13′54″ W thence northeast to latitude 39°04′39″ N, longitude 074°12′39″ W thence southeast to latitude 38°55′04″ N, longitude 075°06′38″ W thence southwest to point of origin.

(3) All waters of the North Atlantic Ocean bounded by a line connecting the following points; latitude 38°49′57″ N, longitude 074°47′41″ W thence northeast to latitude 38°54′28″ N, longitude 074°43′15″ W thence southeast to latitude 38°54′11″ N, longitude 074°42′45″ W thence southwest to latitude 38°49′39 ″N, longitude 074°47′10″ W thence northwest to point of origin, off the coast of Cape May, NJ.

(b) Enforcement period. This rule will be enforced from October 16, 2014 to October 24, 2014 from 6:00 a.m. until 8:00 p.m. each day, unless cancelled earlier by the Captain of the Port once all operations are completed.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) This section applies to all vessels wishing to transit through the Safety Zone except vessels that are engaged in the following operations:

(i) Enforcing laws;

(ii) Servicing aids to navigation; and

(iii) Emergency response vessels.

(2) No person or vessel may enter or remain in a safety zone without the permission of the Captain of the Port;

(3) Each person and vessel in a safety zone shall obey any direction or order of the Captain of the Port;

(4) No person may board, or take or place any article or thing on board, any vessel in a safety zone without the permission of the Captain of the Port; and

(5) No person may take or place any article or thing upon any waterfront facility in a safety zone without the permission of the Captain of the Port.

(d) Definitions. The Captain of the Port means the Commander of Sector Delaware Bay or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port to act on her behalf.

(e) Enforcement. The U.S. Coast Guard may be assisted in the patrol and enforcement of the Safety Zone by Federal, State, and local agencies.

Dated: September 23, 2014.

K. Moore,

Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.