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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2024-0680]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard is proposing to establish a safety zone for certain waters of the Delaware River. This action is necessary to provide for the safety of life on the navigable waters on a portion of the Delaware River near Eddystone, PA, during non-lethal signaling and warning device training conducted from onboard U.S. Coast Guard vessels. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port (COTP), Sector Delaware Bay or a designated representative. We invite your comments on this proposed rulemaking.

# DATES:

Comments and related material must be received by the Coast Guard on or before October 9, 2024.

# ADDRESSES:

                        You may submit comments identified by docket number USCG-2024-0680 using the Federal Decision-Making Portal at                         *https://www.regulations.gov.*                         See the “Public Participation and Request for Comments” portion of the                         **SUPPLEMENTARY INFORMATION**                         section for further instructions on submitting comments. This notice of proposed rulemaking with its plain-language, 100-word-or-less proposed rule summary will be available in this same docket.                    

# FOR FURTHER INFORMATION CONTACT:

                        If you have questions about this proposed rulemaking, call or email MST1 Dylan Caikowski, Waterways Management Division, U.S. Coast Guard Sector Delaware Bay; (215) 271-4814,                         *SecDelBayWWM@uscg.mil.*

# SUPPLEMENTARY INFORMATION:

## I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

NM Nautical mile

NPRM Notice of proposed rulemaking

§ Section 

U.S.C. United States Code

## II. Background, Purpose, and Legal Basis

The U.S. Coast Guard is charged with numerous responsibilities to protect inland and coastal waterways. Missions include maritime law enforcement, search and rescue, marine environmental response, protection of marine sanctuaries, alien migration interdiction, drug interdiction, boating safety, port safety and security, and military support. One of the tools the Coast Guard uses to help execute these missions when encountering a non-compliant vessel is the LA51.

The LA51 is a non-lethal signaling and warning device Coast Guard personnel use during law enforcement operations for getting the attention of vessels which do not respond to orders from the Coast Guard. The LA51 is a two-part (flash bang) ammunition round fired from a 12-gauge military shotgun to produce a visible signal at a range of 100 meters. The explosive pyrotechnic flash is a bright, white light lasting less than one second with a loud report (170 decibels at the source).

                    To maintain ports, waterways, and coastal security mission readiness, Coast Guard personnel within the Sector                           ( print page 73056)                        Delaware Bay COTP Zone must conduct LA51 device training. At the present time, Coast Guard personnel within the Sector Delaware Bay COTP Zone must transit beyond the 12 NM baseline to conduct LA51 device training. This is a logistical and financial burden for the units within Sector Delaware Bay COTP Zone and it limits training opportunities. To better accommodate the Sector's training needs, the COTP Sector Delaware Bay is proposing to establish a safety zone shoreward of the 12 nautical miles (NM) baseline for use as a waterway training area.                

Although the LA51 has a low risk of significant injury, there is some risk of injury or death resulting from near or actual contact among training vessels and waterway users. This risk would increase if normal vessel traffic were to interfere with a training event. As training vessels would be operating near designated navigation channels, as well near approaches to local public boat ramps, private marinas and yacht clubs, and waterfront businesses, the chance of such contact cannot be discounted. The COTP Sector Delaware Bay has therefore determined that potential hazards associated with the LA51 device trainings would be a safety concern for anyone within the waterway training areas.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the waterway training area before, during, and after the training events. The proposed safety zone waterway training area would only be used to conduct LA51 device training as needed for Coast Guard Law Enforcement training requirements. And the COTP Sector Delaware Bay would only activate the safety zone, making subject to enforcement, during periods when training was being conducted. If this permanent Coast Guard waterway training area safety zone was not established, the COTP Sector Delaware Bay would need to establish a temporary safety zone multiple times for LA51 training. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.

## III. Discussion of Proposed Rule

The COTP Sector Delaware Bay is proposing to establish a safety zone for use as a waterway training area. The safety zone would only be subject to enforcement for periods when training was to take place.

The waterway training area includes all navigable waters, on a portion of the Delaware River, encompassed by a line connecting the following points beginning at latitude 39°51′05.4″ N, longitude 075°20′17.4″ W; thence east to latitude 39°51′42.0″ N, longitude 075°18′39.6″ W; thence south to latitude 39°50′38.4″ N, longitude 075°18′09.0″ W; thence west to latitude 39°50′05.4″ N, longitude 075°19′37.2″ W; and thence north back to the beginning point. These coordinates are based on Datum WGS 84. The waterway training area is located near Eddystone, PA, west of Little Tinicum Island and east of Chester Island. The safety zone is a square in shape measuring approximately 2,500 yards in length and approximately 2,500 yards in width.

The proposed waterway training area would be located within a portion of the main navigable channel in the Delaware River. Although this safety zone encompasses a portion of the main navigational channel in the Delaware River that is used by the commercial and recreational vessels, vessel traffic in this area would be able to safely transit through the safety zone, after obtaining permission from the COTP Sector Delaware Bay or a designated representative. The Coast Guard would ensure appropriate monitoring of the waterway while the safety zone is activated.

The Coast Guard anticipates that the proposed safety zone would be activated for approximately two hours on six separate occasions annually—a total of approximately 12 annual enforcement hours for the zone. The Coast Guard anticipates that it would activate the zone at various times of the year during daylight hours only. Whenever a LA51 device training event is planned, the COTP Sector Delaware Bay would notify the maritime community of the enforcement dates and times of the safety zone as the training event dictates. Such notification would be made by broadcast or local notice to mariners, on-scene oral notice, or other appropriate means in accordance with 33 CFR 165.7.

The duration and enforcement of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after these training events. Except for training participants, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP Sector Delaware Bay or a designated representative. The regulatory text we are proposing appears at the end of this document.

## IV. Regulatory Analyses

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, duration, and location of the safety zone. It is anticipated that the safety zone will be activated for six separate events annually. Vessel traffic will be able to safely transit through the safety zone while being enforced, with permission from the COTP Sector Delaware Bay or a designated representative by telephone at (215) 271-4807 or on VHF-FM radio channel 16. The impact to the Delaware River would be for approximately 2 hours or less. Moreover, the Coast Guard will release the details of the zone via a Broadcast Notice to Mariners on VHF-FM radio channel 16 and publish in the Local Notice to Mariners.

### 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 proposed rule would 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 IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

                    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see                     **ADDRESSES**                    ) explaining why you think it                           ( print page 73057)                        qualifies and how and to what degree this rule would economically affect it.                

                    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 proposed rule. If the proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.                

### C. Collection of Information

This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) because it would 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 proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the                     **FOR FURTHER INFORMATION CONTACT**                     section.                

### 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 proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

### F. Environment

                    We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves a safety zone lasting approximately two hours on six separate occasions annually for LA51 device training. Normally such actions are 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 preliminary 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. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.                

### 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.                

## V. 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 the outcome of 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.

*Submitting comments.*                     We encourage you to submit comments through the Federal Decision-Making Portal at                     *https://www.regulations.gov.*                     To do so, go to                     *https://www.regulations.gov,*                     type USCG-2024-0680 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using                     *https://www.regulations.gov,*                     call or email the person in the                     **FOR FURTHER INFORMATION CONTACT**                     section of this proposed rule for alternate instructions.                

*Viewing material in docket.*                     To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the                     *https://www.regulations.gov*                     Frequently Asked Questions web page. Also, if you click on the Dockets tab and then the proposed rule, you should see a “Subscribe” option for email alerts. The option will notify you when comments are posted, or a final rule is published.                

We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

*Personal information.*                     We accept anonymous comments. Comments we post to                     *https://www.regulations.gov*                     will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).                

# 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 is proposing to amend 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:46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 165.523 to read as follows: 

§ 165.523

                        (a)                         *Location.*                         All navigable waters, on a portion of the Delaware River, encompassed by a line connecting the following points beginning at latitude                               ( print page 73058)                            39°51′05.4″ N, longitude 075°20′17.4″ W; thence east to latitude 39°51′42.0″ N, longitude 075°18′39.6″W; thence south to latitude 39°50′38.4″ N, longitude 075°18′09.0″ W; thence west to latitude 39°50′05.4″ N, 075°19′37.2″ W; and thence north back to the beginning point. (WGS 84)                    

                        (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 onboard a Coast Guard vessel or onboard a federal, state, or local law enforcement vessel assisting the Captain of the Port (COTP), Sector Delaware Bay in the enforcement of the safety zone.                    

                        (c)                         *Regulations.*                         (1) Under the general safety zone regulations in subpart C of this part, you may not enter or remain in 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 or remain in the zone, contact the COTP or the COTP's representative via VHF-FM channel 16 or (215) 271-4807. 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.

(3) No vessel authorized to enter or remain in the zone may take on bunkers or conduct lightering operations within the safety zone during its enforcement period.

(4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.

                        (d)                         *Enforcement.*                         (1) The safety zone created by this section will be enforced only upon issuance of a Broadcast Notice to Mariners (BNM) by the COTP or the COTP's representative, as well as on-scene notice or other appropriate means in accordance with § 165.7.                    

(2) 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 3, 2024.

Kate F. Higgins-Bloom,

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

[FR Doc. 2024-20358 Filed 9-6-24; 8:45 am]

BILLING CODE 9110-04-P