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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2017-0843]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing a temporary safety zone on a portion of Shark River, in Neptune City, NJ, from September 5, 2017, through September 23, 2017, while dredging operations are being conducted in the main navigational channel. This safety zone is necessary to provide for the safety of life on navigable waters during dredging operations and will restrict vessel traffic from transiting the main navigational channel.

# DATES:

This rule is effective from September 5, 2017 through September 23, 2017.

# ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to, type USCG-2017-0843 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

# FOR FURTHER INFORMATION CONTACT:

                        If you have questions about this rule, call or email Marine Science Technician Second Class Amanda Boone, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4889, email                         *Amanda.N.Boone@uscg.mil.*

# SUPPLEMENTARY INFORMATION:

## I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§  Section 

U.S.C. United States Code

COTP Captain of the Port

## II. Background Information and Regulatory History

Efforts to dredge the Shark River have been underway for well over a decade. After Superstorm Sandy, the need to dredge the river increased significantly due to sediment deposited by the storm, which impeded navigation within the channel.

Mobile Dredging and Pumping Co. has been awarded the contract to restore the state channels to allow safe passage for recreational and commercial traffic. The sediment will be hydraulically dredged and piped via a secure welded pipeline to the selected dewatering locations.

The purpose of this rule is to promote maritime safety and protect vessels from the hazards of dredge piping and dredge operations. The rule will temporarily restrict vessel traffic from transiting a portion of the Shark River while dredging operations are being conducted in the main navigational channel.

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 the final details for this event were not received by the Coast Guard until August 25, 2017, and the dredging operation will begin September 5, 2017. The safety zone is needed by September 5, 2017, to ensure safe navigation of vessels transiting the Shark River, and it is impracticable to publish an NPRM and consider comments before that date. The dredge and dredge piping must be positioned in the main navigational channel in order for the dredging company to complete the proper dredging of the main navigational channel. Allowing this event to go forward without a safety zone in place would expose mariners and the public to unnecessary dangers associated with dredge piping and dredge operations. Therefore, it is imperative that there is a safety zone restricting traffic in this portion of the Shark River, in Neptune City, NJ.

                    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**                     for the reasons stated above. The Coast Guard expects that there will be an impact to vessel traffic during times when the navigational channel is restricted. However, there will be times throughout the project where vessel traffic is not restricted and traffic will be able to transit through the main navigational channel. Furthermore, notification of the waterway restrictions will be made by the contractor, Mobile Dredging and Pumping Co. Additionally the New Jersey Department of Transportation, Office of Marine Resources, will be conducting outreach to the local community. Notification of the safety zone and waterway restrictions will be made by the COTP via marine safety broadcast using VHF-FM channel 16 and through the Local Notice to Mariners.                

## III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Delaware Bay has determined that potential hazards are associated with dredge piping and dredge operations from September 5, 2017, through September 23, 2017. The rule is necessary to promote maritime safety and protect vessels from the hazards of dredge piping and dredge operations.

                    The rule will have an impact to vessels transiting through the Shark River main navigational channel, from latitude 40°10′54.20″ N., longitude 74°1′51.05″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′6.87″ N., longitude 74° 1′53.54″ W., as vessels will be unable to transit                           ( print page 41894)                        the main navigational channel during times when dredging operations are being conducted. This restriction is necessary to ensure the safety of life and protect vessel from dredge piping and dredge operations.                

## IV. Discussion of the Rule

On September 5, 2017, dredging will begin on a portion of the Shark River in Neptune City, NJ. The COTP Delaware Bay has determined that the hazards associated with dredge piping and dredge operations in the main navigational channel create the need for a safety zone to ensure safety of vessels transiting this portion and for workers engaged in dredging operations.

The safety zone will close the main navigational channel on the Shark River from latitude 40°10′54.20″ N., longitude 74°1′51.05″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′6.87″ N., longitude 74°1′53.54″ W.; during times of dredging. Dredging of the main navigational channel is scheduled from September 5, 2017, through September 23, 2017, only from 9 a.m. on Mondays through 9 p.m. on Thursdays. Entry into, transiting, or anchoring within this portion of Shark River during these times is prohibited. These coordinates are based on the World Geodetic System 1984 (WGS 84) horizontal datum reference.

The channel will be open from September 5, 2017, through September 23, 2017, from 9 p.m. on Thursdays to 9 a.m. on Mondays. During the periods when the channel is open mariners are urged to transit at their slowest safe speed, with no wake, no meeting or passing of other vessels, and proceed with caution after passing arrangements have been made. Mariners must communicate clearly, and in advance, with the dredge via VHF 6 or 13.

## V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive Order 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, this rule 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 limited size of the zone and duration of the safety zone. Although the main navigational channel of this portion of the Shark River will be closed for periods of time throughout the dredging operation, there are designated times where the channel will be open for vessel traffic and traffic will be able transit. Vessels will only be affected 84-hours weekly, from 9 a.m. on Mondays through 9 p.m. on Thursdays, during the month of September 2017. The safety zone and channel closure will be well publicized to allow mariners to make alternative plans for transiting the affected area.

### 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 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 calls for no 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 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                           ( print page 41895)                        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 lasts for less than a month in duration and has designated times where the channel will be open for vessel traffic and traffic will be able to transit. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the                     **ADDRESSES**                     section of this preamble.                

### 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.                

# 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; 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.

2. Add § 165.T05-0843 to read as follows: 

§ 165.T05-0843

                            (a)                             *Definitions.*                             As used in this section,                             *designated representative*                             means a Coast Guard petty officer, warrant or commissioned officer on board a Coast Guard vessel and or on board another Federal, State, or local law enforcement vessel assisting the Captain of the Port, Delaware Bay with enforcement of the safety zone.                        

                            (b)                             *Location.*                             The following areas are safety zone: All waters from latitude 40°10′54.20″ N., longitude 74°1′51.05″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′6.87″ N., longitude 74°1′53.54″ W., in the Shark River, in Neptune City, NJ. These coordinates are based on the World Geodetic System 1984 (WGS 84) horizontal datum reference.                        

                            (c)                             *Regulations.*                             The general safety zone regulations found in § 165.23 apply to the safety zone created by this temporary section.                        

(1) All vessels and persons are prohibited from entering into or moving within the safety zone described in paragraph (a) of this section while it is subject to enforcement, unless authorized by the Captain of the Port, Delaware Bay, or by his designated representative.

(2) Persons or vessels seeking to enter or pass through the safety zone must contact the Captain of the Port, Delaware Bay, or his designated representative to seek permission to transit the area. The Captain of the Port, Delaware Bay can be contacted at telephone number 215-271-4807 or on Marine Band Radio VHF Channel 16 (156.8 MHz).

(3) Vessels may transit this portion of the Shark River from September 5, 2017, through September 23, 2017, weekly, from 9 p.m. on Thursdays through 9 a.m. on Mondays. During the periods when the channel is open mariners are urged to transit at their slowest safe speed, with no wake, no meeting or passing of other vessels, and proceed with caution after passing arrangements have been made. Mariners must communicate clearly, and in advance, with the dredge via VHF 6 or 13.

(4) This section applies to all vessels except those engaged in the following operations: Enforcing laws, servicing aids to navigation and emergency response vessels.

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

                            (e)                             *Enforcement periods.*                             This section will be enforced weekly, from 9 a.m. on Mondays through 9 p.m. on Thursdays, from September 5, 2017, through September 23, 2017, unless cancelled earlier by the Captain of the Port.                        

Dated: August 30, 2017.

Scott E. Anderson,

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

[FR Doc. 2017-18732 Filed 9-1-17; 8:45 am]

 BILLING CODE 9110-04-P