[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16126-16129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05806]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket Number USCG-2019-0822]
RIN 1625-AA01


Anchorage Grounds; Atlantic Ocean, Delaware

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to amend the anchorage 
regulations for the Delaware Bay and River, and adjacent waters, by 
establishing two new, offshore deep-water anchorages. The purpose of 
this proposed rule is to improve navigation safety by accommodating 
recent and anticipated future growth in vessel size and volume of 
vessel traffic entering the Delaware Bay and River, and to preserve 
areas traditionally used or needed for anchoring. We invite your 
comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 23, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0822 using the Federal eRulemaking 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Marine Science Technician First 
Class (MST1) Jennifer Padilla, Sector Delaware Bay, U.S. Coast Guard; 
telephone (215) 271-4889, email <a href="/cdn-cgi/l/email-protection#1a507f7474737c7f683456344a7b7e7376767b5a6f69797d34777376"><span class="__cf_email__" data-cfemail="b7fdd2d9d9ded1d2c599fb99e7d6d3dedbdbd6f7c2c4d4d099dadedb">[email protected]</span></a>; or Mr. 
Matt Creelman, Fifth Coast Guard District (dpw), U.S. Coast Guard; 
telephone (757) 398-6230, email <a href="/cdn-cgi/l/email-protection#e5a88491918d8092cbaecba69780808988848bd7a590968682cb888c89"><span class="__cf_email__" data-cfemail="8ec3effafae6ebf9a0c5a0cdfcebebe2e3efe0bccefbfdede9a0e3e7e2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

ACPARS Atlantic Coast Port Access Route Study
AIS Automatic Identification System
BOEM Bureau of Ocean Energy Management
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NOI Notice of Intent
NPRM Notice of Proposed Rulemaking
OREA Offshore Renewable Energy Area
PARS Port Access Route Study
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    In 2011, the Coast Guard received requests to formally establish 
anchorages in the Atlantic Ocean offshore from the Delaware coast in 
response to the Atlantic Coast Port Access Route Study (ACPARS), a 
multiyear study that included public participation and identified the 
navigation routes customarily followed by ships engaged in commerce 
between international and domestic U.S. ports. The ACPARS is available 
at https://navcen.uscg.gov/?pageName=PARSReports. To preserve areas 
traditionally used for anchoring from offshore development, the Federal 
Pilots and the Mariners' Advisory Committee for the Bay and River 
Delaware requested formal anchorage grounds be established to the east 
and the west of the southeastern approach traffic separation scheme. 
While these requests were noted in the ACPARS, the Coast Guard took no 
action in the pursuing years, and the areas to the east and the west of 
the southeastern approach traffic separation scheme continued to be 
used as traditional and unregulated anchorage grounds.
    On July 12, 2018, and August 21, 2018, the Coast Guard held 
meetings with maritime stakeholders and waterway users to discuss the 
impacts to vessel traffic and navigation safety on the Delaware Bay and 
River due to the expansion of the Panama Canal and the planned 
deepening of the Delaware River from 40 to 45 feet. Meeting attendees 
included the Pilots' Association for the Bay and River Delaware, the 
Mariners' Advisory Committee for the Bay and River Delaware, Interport 
Pilots Association, and port and terminal representatives. The 
attendees concluded the increased volume of vessel traffic and the size 
of vessels calling on the Delaware Bay and River, and planned and 
potential offshore development, heightened the need to formally 
establish three new anchorage grounds: Two offshore in the Atlantic 
Ocean and an additional inshore anchorage located in the Delaware Bay 
near the Cape Henlopen breakwaters. The participants suggested the 
anchorages would preserve areas traditionally used for anchoring and 
provide for the ongoing and future growth of the marine transportation 
system on the Delaware Bay and River.
    On November 29, 2019, the Coast Guard published a Notice of Inquiry 
(NOI) in the Federal Register (81 FR 25854) to formally seek feedback 
on whether the Coast Guard should consider a proposed rulemaking to 
establish the three new anchorages. Following the naming convention in 
33 CFR 110.157, the anchorages were referred to as Anchorage B--
Breakwater, Anchorage C--Cape Henlopen, and Anchorage D--Indian River. 
We received 42 comments in response to the NOI. Five comments were 
supportive; twenty eight were opposed to the proposed inshore 
anchorage, Anchorage B; and fourteen were opposed to the proposed 
offshore anchorages, Anchorages C and D.
    On May 5, 2020, the Coast Guard published a Notice of Study; 
request for comments entitled ``Port Access Route Study (PARS) for the 
Seacoast of New Jersey Including Offshore Approaches to the Delaware 
Bay, Delaware'' in the Federal Register (85 FR 26695). The initial 
comment period closed on July 5, 2020. The Coast Guard conducted two 
virtual public meetings on October 28, 2020, and November 4, 2020, and 
the initial comment period was re-opened through November 10, 2020. The 
study included an in-depth analysis of historical anchoring patterns in 
the approaches to the Delaware Bay and River. Anchorage related 
comments received during the study are discussed in Section III, and a 
full list of comments can be found in the Port Access Route Study 
``PARS,'' docket number USCG-2020-0172.\1\
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    \1\ The docket folder for USCG-2020-0172 is available at: 
Regulations.gov.
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    Based on feedback received to date, primary objections to the 
proposed inshore anchorage are environmental in nature and concern 
potential impacts on Atlantic Sturgeon, an endangered species under the 
Endangered Species Act. Primary objections to the proposed offshore 
anchorages concern potential conflicts between the siting of the 
anchorage grounds and the need to route electricity transmission export 
cables to the proposed or future offshore wind developments. Based on 
the differences and nature of concerns between the anchorages located 
inshore, in the Delaware River estuary, and the

[[Page 16127]]

anchorages located offshore in the Atlantic Ocean, the Coast Guard 
intends to move forward with two separate rulemakings, one for the 
inshore anchorage, and another for the offshore anchorages. With this 
rulemaking, the Coast Guard proposes the establishment of the 
anchorages located offshore in the Atlantic Ocean, Anchorage C--Cape 
Henlopen, and Anchorage D--Indian River.
    The purpose of this proposed rule is to improve navigation safety 
by accommodating recent and anticipated future growth in cargo vessel 
size and volume of vessel traffic entering the Delaware Bay and River, 
and to preserve areas traditionally used or needed for anchoring. We 
invite your comments on this proposed rulemaking.
    The legal basis and authorities for this notice of proposed 
rulemaking are found in 46 U.S.C. 70006, 33 CFR 1.05-1, DHS Delegation 
No. 0170.1, which collectively authorize the Coast Guard to propose, 
establish, and define regulatory anchorage grounds.

III. Discussion of Comments on NOI

    This section provides a detailed discussion of the public comments 
on the proposed Delaware Bay Anchorages received during the NOI comment 
period and during the two virtual public meetings held for the New 
Jersey PARS study. Also contributing to this rulemaking through the 
PARS study process, the Coast Guard Navigation Center collected and 
analyzed vessel historical Automatic Information System (AIS) track 
line data from all vessels between 2017 and 2019 and created AIS ``heat 
maps.'' These heat maps show a concentration of vessels and their 
voyage routes and give insight into their operations and use of the 
waterways and, most pertinent to this NPRM, the location of vessels 
when at anchor. A copy of this AIS Anchorage report can be found in the 
docket.\2\
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    \2\ The docket folder for USCG-2019-0822 is available at: 
Regulations.gov.
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    On the NOI, the Coast Guard received a total of 19 comments 
concerning proposed Anchorage C--Cape Henlopen and Anchorage D--Indian 
River, five supportive and 14 opposed. Comments submitted to the online 
docket aligned into four categories: Environmental concerns, 
electricity transmission export cable routing safety and security, view 
shed concerns, and supporters. Copies of the public comments received 
are available for viewing in the public docket for this rulemaking 
under docket number USCG-2019-0822. Commenters represented a wide range 
of individuals and entities, including State and local government 
officials, port authorities, representatives of affected industries, 
such as maritime, port, and other facilities, and private citizens. The 
comments received from these parties helped to inform the proposal in 
this NPRM.

1. Environmental Concerns

    We received eight comments opposing the anchorage locations due to 
concerns that the presence of anchored ships could disrupt or pollute 
marine life habitats and behaviors. The Coast Guard has prepared a 
preliminary Record of Environmental Consideration (REC) for this NPRM, 
which is available in the NPRMs docket folder, and has made a 
preliminary determination that the proposed anchorages do not 
cumulatively or individually have significant effect on the natural or 
human environment.
    We also note there are existing laws and regulations in place to 
govern behavior of mariners and vessels related to concerns about the 
release of pollutants. In terms of the discharge of pollutants, our 
regulations in 33 CFR part 151 and the Act to Prevent Pollution from 
Ships implement provisions of the International Convention for 
Prevention of Pollution from Ships and subject violators to 
penalties.\3\ In addition, the Ports and Waterways Safety Act (PWSA) of 
1972 (33 U.S.C. 1221, 1223, 1228, 1232 et seq.) and PWSA-implementing 
regulations help us ensure vessel compliance with all applicable 
standards, operating requirements, conditions for entry into port, and 
enforcement provisions.
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    \3\ 33 U.S.C. 1901 et seq.
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    The Coast Guard also notes that this rulemaking will not 
significantly change the current and historical anchoring habits of 
vessels in these areas. This is demonstrated in the AIS heat maps for 
anchored vessels showing a concentration of vessels in or very near to 
the proposed anchorage areas. The formal regulation of these anchorages 
would not change the number of vessels that are anchoring and would 
provide greater oversight and predictability to vessel navigation in 
the area, which would ultimately lessen the potential for marine 
accidents and environmental impacts.

2. Electricity Transmission Export Cable Routing and Safety Concerns

    There were three comments submitted that pertained to concerns 
regarding the new anchorages coexisting with potential undersea cable 
routes to adjacent wind farm leases. Commenters requested mitigating 
measures and further discussion with wind farm stakeholders to avoid 
anchors striking or fouling undersea cables. Conversations between the 
Coast Guard and offshore wind developers have continued, both during 
and subsequent to the NOI and New Jersey PARS comment periods and 
virtual meetings. These conversations, among other things, have 
resulted in the developers choosing to pursue alternate cable routing 
measures that will avoid the proposed anchorage grounds.

3. Tourism Concerns and View Shed Concerns

    Four comments submitted were opposed to the new anchorages stating 
that anchored vessels would obscure the ocean views from the coast and 
reduce the tourism appeal of the local areas and harm the local 
economies. In considering these comments, we note that the approval of 
the proposed anchorages will not directly change the status quo for 
vessels anchoring in these areas. AIS tracking data from 2017 to 2019 
show vessels consistently anchoring in the same general area as the 
proposed areas, and that anchoring would continue in these areas 
regardless of the outcome of this rulemaking. By officially designating 
these anchorages, the Coast Guard can formally regulate the vessels 
that anchor in these offshore areas and limit vessels from anchoring 
elsewhere in the future, further affecting the human environment and 
local traffic.

4. Anchorage Proponents

    There were five comments that stated the anchorages were necessary 
to preserve areas traditionally used for anchoring from offshore wind 
development and to provide adequate safe anchorage for vessels calling 
on the growing ports of the Delaware Bay and River. These comments were 
supported by AIS vessel data collected by the Coast Guard showing 
consistent anchorage in the proposed areas between 2017-2019.

5. Comments Received During the PARS Meetings and Anchoring Data

    Of the comments received during the New Jersey PARS virtual public 
meetings, six pertained to the proposed anchorages. One commenter 
specifically requested that this NPRM be available for at least 60 days 
for public comment. The remaining comments supported the anchorage 
proposal but stated concern for conflicts between vessel anchors and 
electricity transmission export cables. Conversations between the Coast 
Guard and offshore wind developers have continued, both during and 
subsequent

[[Page 16128]]

to the NOI and New Jersey PARS comment periods and virtual meetings. 
These conversations, among other things, have resulted in the 
developers choosing to pursue alternate cable routing measures that 
will avoid the proposed anchorage grounds.

IV. Discussion of Proposed Rule

    The Coast Guard is proposing to establish new anchorage grounds 
Anchorage C--Cape Henlopen and Anchorage D--Indian River. This proposal 
reflects our consideration of comments received at public meetings and 
in the docket, the preliminary Record of Environmental Consideration, 
and data analysis collected during the New Jersey PARS study.
    We believe this proposal will establish new deep-water anchorage 
grounds for commercial vessels that will support the new and projected 
growth in maritime commerce vessel traffic throughout the Delaware Bay 
and River. These anchorages will create predictable navigation patterns 
greatly improving safety of navigation at sea and limit the impact of 
anchoring to the sea floor to specific determined areas.
    Anchorage C--Cape Henlopen would be located in the Atlantic Ocean 
approximately 9.4 miles east of the Delaware coast. The proposed 
Anchorage C would be located in naturally deep water with charted 
depths between 41 and 85 feet. The boundaries of Anchorage C--Cape 
Henlopen are presented in Sec.  110.157(a)(19) of the proposed 
regulatory text at the end of this document.
    Anchorage D--Indian River would be located in the Atlantic Ocean 
beginning approximately 6 miles east of the Delaware coast. The 
proposed Anchorage D--Indian River will be located in naturally deep 
water with charted depths between 40 and 85 feet. The proposed location 
of Anchorage D has historically been used as an unregulated anchorage 
by vessels entering and exiting the port. The boundaries of Anchorage 
D--Indian River are presented in Sec.  110.157(a)(20) of the proposed 
regulatory text at the end of this document.

V. 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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM 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 location and 
size of the proposed anchorage grounds, as well as the vessel traffic 
and anchoring data provided by the Coast Guard Navigation Center. The 
regulation would ensure approximately 27 square miles of anchorage 
grounds are designated to provide necessary commercial deep draft 
anchorages and enhance the navigational safety of commercial vessels 
transiting to, from, and within the Delaware Bay and River. The impacts 
on routine navigation are expected to be minimal because the proposed 
anchorage areas are located outside of the established traffic 
separation zones and are consistent with current anchorage habits. When 
not occupied, vessels would be able to maneuver in, around, and through 
the anchorages.

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.
    The number of small entities impacted and the extent of the impact, 
if any, is expected to be minimal. Proposed Anchorage C--Cape Henlopen 
and Anchorage D--Indian River are located in an area of the Atlantic 
Ocean which is not a popular or productive fishing location. Further, 
the location is not in an area routinely transited by vessels heading 
to, or returning from, known fishing grounds. Finally, the anchorage is 
located in an area that is not currently used by small entities, 
including small vessels, for anchoring due to the depth of water 
naturally present in the area.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it 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 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. 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 contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

[[Page 16129]]

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 effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.1D, 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 amending the regulations for 
Delaware Bay and River anchorage grounds by establishing two new 
anchorage regulations; Anchorage C --Cape Henlopen and Anchorage D--
Indian River. Normally such actions are categorically excluded from 
further review under paragraph L59(a) of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of 
Environmental Consideration supporting this determination is 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 proposed rule.

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 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-2019-0822 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. 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 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard is 
proposing to amend 33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority:  33 U.S.C. 471, 2071; 46 U.S.C. 70034; 33 CFR 1.05-1; 
Department of Homeland Security Delegation No. 0170.1.

0
2. Amend Sec.  110.157 by adding paragraphs (a)(18) through (20) to 
read as follows:


Sec.  110.157   Delaware Bay and River.

    (a) * * *
    (18) Reserved.
    (19) Anchorage C--Cape Henlopen. The waters bounded by a line 
connecting the following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
38[deg]40'54.00'' N                  74[deg]52'00.00'' W
38[deg]40'56.08'' N                  74[deg]48'51.34'' W
38[deg]37'36.00'' N                  74[deg]48'30.00'' W
------------------------------------------------------------------------
(DATUM: NAD 83)

    (20) Anchorage D--Indian River. The waters bounded by a line 
connecting the following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
38[deg]34'56.25'' N                  74[deg]52'19.12'' W
38[deg]33'40.91'' N                  74[deg]54'41.50'' W
38[deg]31'31.08'' N                  74[deg]55'27.96'' W
38[deg]29'07.35'' N                  74[deg]53'29.25'' W
38[deg]28'56.87'' N                  74[deg]50'28.69'' W
38[deg]30'07.37'' N                  74[deg]48'08.38'' W
------------------------------------------------------------------------
(DATUM: NAD 83)

* * * * *

    Dated: March 14, 2022.
L.M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-05806 Filed 3-21-22; 8:45 am]
BILLING CODE 9110-04-P


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