[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Rules and Regulations]
[Pages 533-536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00075]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-1063]
RIN 1625-AA00


Safety Zones, Delaware River; Maintenance Dredging

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing temporary safety zones in 
portions of New Castle Range, Marcus Hook Range, Deepwater Point Range, 
and Anchorage 7 off Marcus Hook Range on the Delaware River. The safety 
zones will temporarily restrict vessel traffic from transiting or 
anchoring in a portion of the Delaware River while dredging operations 
are being conducted to facilitate the Delaware River annual maintenance 
project for the main navigational channel of the Delaware River. This 
regulation is necessary to provide for the safety of life on navigable 
waters of the Delaware River, in the vicinity of dredging activity and 
is intended to protect mariners from the hazards associated with pipe-
laying and dredging operations.

DATES: This rule is effective without actual notice from January 31, 
2019, through May 31, 2019. For the purposes of enforcement, actual 
notice will be used from January 15, 2019, through January 31, 2019.
    Comments and related material must be received by the Coast Guard 
on or before March 4, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-1063 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule. You may submit 
comments identified by docket number USCG-2018-1063 using the Federal 
eRulemaking Portal at http://www.regulations.gov. See the ``Public 
Participation and Request for Comments'' portion for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Edmund Ofalt, U.S. Coast Guard, Sector 
Delaware Bay, Waterways Management Division, telephone (215) 271-4889, 
email <a href="/cdn-cgi/l/email-protection#e4a18089918a80ca8eca8b82858890a491978783ca898d88"><span class="__cf_email__" data-cfemail="2a6f4e475f444e044004454c4b465e6a5f59494d04474346">[email protected]</span></a>.

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 doing so would be impractical and 
contrary to the public interest. Final details for the dredging 
operation were not received by the Coast Guard until January 9, 2019. 
Vessels transiting through New Castle Range, Marcus Hook Range, 
Deepwater Point Range, or entering the waters of Anchorage 7 off Marcus 
Hook Range during dredging operations may be at risk. We are taking 
immediate action to help protect the safety of the project personnel, 
vessels, and the marine environment on the navigable waters within the 
safety zones while dredging is being conducted. It is important to have 
these regulations in effect during dredging operations and it is 
impracticable to delay the regulations.
    We are issuing this rule and, under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register because doing so would 
be contrary to the public interest. Allowing this dredging operation to 
go forward without safety zones in place would expose mariners and the 
public to unnecessary dangers.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port (COTP), Delaware Bay, has determined that 
potential hazards associated with dredging operations beginning on or 
after January 15, 2019, will be a safety concern for vessels attempting 
to transit the Delaware River, along New Castle Range, Marcus Hook 
Range, Deepwater Point Range, and Anchorage 7 off Marcus Hook Range. 
This rule is needed to protect personnel, vessels, and the marine 
environment on the navigable waters within the safety zones while 
dredging operations are being conducted.

IV. Discussion of the Rule

    This rule establishes safety zones on portions of the Delaware 
River from January 15, 2019 until May 31, 2019, unless cancelled 
earlier by the COTP. The safety zones are necessary to facilitate the 
main channel annual maintenance of New Castle Range, Marcus Hook Range, 
Deepwater Point Range, and Anchorage 7 off Marcus Hook Range (as 
described in 33 CFR 110.157(a)(8)). Maintenance dredging in the channel 
will most likely be conducted with the dredge ESSEX, though other 
dredges may be used, along with associated dredge pipeline and 
boosters. The pipeline consists of a combination of floating hoses 
immediately behind the dredge and submerged pipeline leading to upland 
disposal areas. Due to the hazards related to dredging operations, the 
associated pipeline, and the location of the submerged pipeline, safety 
zones are being established in the following areas:
    (1) Safety zone one includes all navigable waters within 250 yards 
of the dredge displaying lights and shapes for vessels restricted in 
ability to maneuver as described in 33 CFR 83.27 and all related dredge 
equipment when the dredge is operating in New Castle Range, Marcus Hook 
Range, Deepwater Point Range, and Anchorage 7. This safety zone is 
being established for the

[[Page 534]]

duration of the maintenance project. Vessels requesting to transit the 
safety zone must contact the dredge on VHF channel 13 or 16 at least 1 
hour prior to arrival to arrange safe passage. At least one side of the 
main navigational channel will be kept clear for safe passage of 
vessels in the vicinity of the safety zone. At no time will the entire 
main navigational channel be closed to vessel traffic. Vessels should 
avoid meetings in these areas where one side of the main navigational 
channel is open and proceed per this rule and the Rules of the Road (33 
CFR subchapter E).
    (2) Safety zone two includes all the waters of Anchorage 7 off 
Marcus Hook Range, as described in 33 CFR 110.157(a)(8). Vessels 
wishing to anchor in Anchorage 7 off Marcus Hook Range must obtain 
permission from the COTP at least 24 hours in advance by calling (215) 
271-4807. The COTP will permit only one vessel to anchor at a time on a 
``first-come, first-served'' basis. Vessels will only be allowed to 
anchor for a 12 hour period. Vessels that require an examination by the 
Public Health Service, Customs, or Immigration authorities will be 
directed to an anchorage by the COTP for the required inspection. 
Vessels are encouraged to use Anchorage 9 near the entrance to Mantua 
Creek, Anchorage 10 at Naval Base, Philadelphia, and Anchorage 6 off 
Deepwater Point Range as alternative anchorages.
    Entry into, transiting, or anchoring within safety zone one is 
prohibited unless vessels obtain permission from the COTP or make 
satisfactory passing arrangements with the operating dredge per this 
rule and the Rules of the Road (33 CFR subchapter E). Though the dredge 
ESSEX is the primary dredge to be used in these operations, the COTP 
may update the information and the dredge being utilized with these 
dredging operations via Marine Safety Information Bulletin and 
Broadcast Notice to Mariners.
    The COTP will activate and terminate the safety zones individually 
once all submerged pipeline has been recovered and dredging operations 
are completed in each respective range. Notice of the activation and 
the termination of the safety zones will be made in accordance with 33 
CFR 165.7.

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. 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, it 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 size, 
location, and duration of the safety zones. Although this regulation 
will restrict access to regulated areas, the effect of this rule will 
not be significant because there are a number of alternate anchorages 
available for vessels to anchor. Furthermore, vessels may transit 
through the safety zone with the permission of the COTP or make 
satisfactory passing arrangements with the dredge ESSEX or other 
dredges that may be used in accordance with this rule and the Rules of 
the Road (33 CFR subchapter E). Notification of the safety zones to the 
maritime public will be made via maritime advisories allowing mariners 
to alter their plans accordingly.

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 zones 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 
contact 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

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

[[Page 535]]

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 
Management Directive 023-01 and Commandant Instruction M16475.lD, 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 it 
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 that will close only one side of the main 
navigational channel and vessels can request permission to enter the 
channel. 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. 01. A Record of Environmental Consideration (REC) 
supporting this determination is available in the docket where 
indicated under ADDRESSES.

G. 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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape this rulemaking. If you submit a 
comment, please include the docket number for this rulemaking, indicate 
the specific section of this document to which each comment applies, 
and provide a reason for each suggestion or recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this TIR as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted.

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:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 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.T05-1063 to read as follows:


Sec.  165.T05-1063   Safety Zones, Delaware River; Maintenance 
Dredging.

    (a) Location. The following areas are safety zones:
    (1) Safety zone one includes all waters within 250 yards of the 
dredge displaying lights and shapes for vessels restricted in ability 
to maneuver as described in 33 CFR 83.27, as well as all related dredge 
equipment, while the dredge is operating in New Castle Range, Marcus 
Hook Range, and Deepwater Point Range. For enforcement purposes, New 
Castle Range, Marcus Hook Range, and Deepwater Point Range include all 
navigable waters of the Delaware River shoreline to shoreline, bound by 
a line drawn perpendicular to the center line of the channel at the 
farthest upriver point of the range to a line drawn perpendicular to 
the center line of the channel at the farthest downriver point of the 
range.
    (2) Safety zone two includes all the waters of Anchorage 7 off 
Marcus Hook Range, as described in 33 CFR 110.157(a)(8), which is 
depicted on U.S. Nautical Chart 12312.
    (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, Delaware Bay in the enforcement of the safety 
zone.
    (c) Regulations. (1) Entry into or transiting within safety zone 
one in paragraph (a)(1) of this section is prohibited unless vessels 
obtain permission from the Captain of the Port via VHF-FM channel 16 or 
215-271-4807, or make satisfactory passing arrangements via VHF-FM 
channel 13 or 16 with the operating dredge per this section and the 
rules of the road (33 CFR subchapter E). Vessels requesting to transit 
shall contact the operating dredge via VHF-FM channel 13 or 16 at least 
1 hour prior to arrival.
    (2) Vessels granted permission to enter and transit safety zone one 
in paragraph (a)(1) of this section must do so in accordance with any 
directions or orders of the Captain of the Port, his designated 
representative, or the dredge. No person or vessel may enter or remain 
in a safety zone without permission from the Captain of the Port or the 
dredge.
    (3) All vessels transiting safety zone one in paragraph (a)(1) of 
this section must operate at the minimum safe speed necessary to 
maintain steerage and reduce wake.
    (4) Vessels desiring to anchor in safety zone two in paragraph 
(a)(2) of this section, Anchorage 7 off Marcus Hook Range, must obtain 
permission from the COTP at least 24 hours in advance by calling (215) 
271-4807. The COTP will permit one vessel at a time to anchor on a 
``first-come, first-served'' basis. Vessels will only be allowed to 
anchor for a 12 hour period. Vessels that require an examination by the 
Public Health Service, Customs, or Immigration authorities will be 
directed to an anchorage for the required inspection by the COTP.
    (5) This section applies to all vessels except those engaged in the 
following operations: Enforcement of laws, service of aids to 
navigation, and emergency response.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zones by Federal, State, and local 
agencies.
    (e) Enforcement period. These zones will be enforced 24 hours a day 
while operations are being conducted from January 15, 2019 through May 
31, 2019 unless cancelled earlier by the COTP.


[[Page 536]]


    Dated: January 14, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2019-00075 Filed 1-30-19; 8:45 am]
 BILLING CODE 9110-04-P


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