[Federal Register Volume 80, Number 55 (Monday, March 23, 2015)]
[Rules and Regulations]
[Pages 15167-15170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06578]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0129]
RIN 1625-AA00


Safety Zone, Delaware River; Marcus Hook, PA

AGENCY: Coast Guard, DHS.

[[Page 15168]]


ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of Delaware River in the vicinity of Marcus Hook, Pennsylvania. 
The safety zone will temporarily restrict vessel traffic from 
transiting or anchoring in a portion of Marcus Hook anchorage in order 
to protect the safety of life and property on the waters while 
underwater impulsive sound testing is conducted.

DATES: This rule is effective without actual notice from March 23, 2015 
until 6 p.m. on May 12, 2015. For the purposes of enforcement, actual 
notice will be used from 5 a.m. on March 10, 2015, until March 23, 
2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2015-0129]. 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 (215) 
271-4851, email [email protected]. If you have questions on 
viewing or submitting material to the docket, call Cheryl Collins, 
Program Manager, Docket Operations, telephone (202) 366-9826.

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 
because immediate action is necessary to protect the maritime public. 
The Coast Guard was notified on February 24, 2015, of the Philadelphia 
Regional Port Authority's final intentions to conduct these tests in 
the upper portion of Marcus Hook anchorage. Because of the inherent 
threat to navigation, providing a notice and comment period would be 
impractical. Furthermore, allowing this situation to exist without a 
safety zone in place would expose mariners and the public to 
unnecessary dangers contrary to the public interest. Vessels transiting 
or attempting to transit through the area may be at risk, and therefore 
a safety zone is needed to protect the public from the hazards 
associated with underwater impulsive sound testing. Therefore, delay in 
taking action is both impracticable and contrary to public interest. 
For the reasons stated above, 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.

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; 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.
    The Philadelphia Regional Port Authority (PRPA), in cooperation 
with the U.S. Army Corps of Engineers (USACE), Philadelphia District, 
will conduct tests to determine the feasibility of using loud impulsive 
sound to behaviorally exclude two species of endangered sturgeon from 
the areas where blasting will be performed for the Delaware River Main 
Channel Deepening Project starting in December 2015. These tests will 
be conducted in the upper portion of the Marcus Hook Anchorage, where 
sturgeon are known to commonly occur, and as far north within the 
anchorage as possible to minimize potential impacts to commercial 
vessel traffic. The tests will require anchoring a barge with the 
sound-producing equipment (using spuds) on the edge of, but not within, 
the anchorage. The barge, 40' wide by 100' long, will be equipped with 
anchor lighting meeting U.S. Coast Guard requirements. Nine acoustic 
telemetry receivers will be deployed within the test area. The 
telemetry receivers will be deployed on bottom-set moorings with no 
surface marker floats or buoys. To reduce the possibility of vessel 
interference with the tests, and to prevent damage to, or displacement 
of, the telemetry receivers a safety zone is necessary.

C. Discussion of the Final Rule

    To mitigate the risks associated with the underwater impulsive 
sound testing in Marcus Hook anchorage, the Captain of the Port, 
Delaware Bay will enforce a temporary safety zone in the upper portion 
of Anchorage 7 off Marcus Hook, as described in Sec.  110.157(a)(8) of 
this chapter. The safety zone will be effective and enforced from 5 
a.m. on March 10, 2015, to 6 p.m. on May 12, 2015. If this safety zone 
should be cancelled earlier the Captain of the Port, Delaware Bay will 
notify mariners via broadcast on VHF Ch.16.
    Entry into, transiting, or anchoring within the safety zone is 
prohibited unless authorized by the Captain of the Port, Delaware Bay, 
or her on-scene representative. The Captain of the Port, Delaware Bay, 
or her on-scene representative may be contacted via VHF channel 16 or 
at 215-271-4807.

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 for a limited duration.

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

[[Page 15169]]

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 or Marcus Hook anchorage on the Delaware 
River in the vicinity of Marcus Hook, Pennsylvania, from 5 a.m. on 
March 10, 2015 to 6 p.m. on May 12, 2015, unless cancelled earlier by 
the Captain of the Port once all operations are completed.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reason: Vessel 
traffic will be allowed to pass through the zone with permission of the 
Coast Guard Captain of the Port Delaware Bay or her designated 
representative and the zone is limited in duration. Sector Delaware Bay 
will issue maritime advisories widely available to users of the Salem 
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. 
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

0
1. The authority citation for part 165 continues to read as follows:


[[Page 15170]]


    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 temporary Sec.  165.T05-0129, to read as follows:


Sec.  165.T05-0129  Safety Zone, Delaware River; Marcus Hook, PA.

    (a) Regulated area. The following area is a safety zone: All waters 
of the Delaware River in Anchorage 7 off Marcus Hook described in Sec.  
110.157(a)(8) of this chapter inside a boundary described as 
originating from 39[deg]48'38'' N., 075[deg]23'17'' W.; then Northwest 
to 39[deg]48'55'' N., 075[deg]23'35'' W.; then Northeast to 
39[deg]49'12'' N., 075[deg]23'01'' W.; then Southeast to 39[deg]49'07'' 
N., 075[deg]22'57'' W.; and then Southwest to 39[deg]48'38'' N., 
075[deg]23'17'' W. Mariners will be advised of this safety zone by 
broadcast on VHF channel 16.
    (b) Enforcement period. From 5 a.m. on March 10, 2015, to 6 p.m. on 
May 12, 2015, unless cancelled earlier by the Captain of the Port once 
all operations are completed. If this safety zone should be cancelled 
earlier the Captain of the Port, Delaware Bay will notify mariners via 
broadcast on VHF Ch. 16.
    (c) Regulations. All persons are required to comply with the 
general regulations governing safety zones in 33 CFR 165.23 of this 
part.
    (1) All persons or vessels wishing to transit through the Safety 
Zone described in paragraph (a) of this section must request 
authorization to do so from the Captain of the Port or her designated 
representative 30 minutes prior to the intended time of transit.
    (2) Vessels granted permission to transit must do so in accordance 
with the directions provided by the Captain of the Port or her 
designated representative.
    (3) To seek permission to transit the Safety Zone, the Captain of 
the Port's representative can be contacted via marine radio VHF Channel 
16 or at 215-271-4807.
    (4) 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.
    (5) No person or vessel may enter or remain in a safety zone 
without the permission of the Captain of the Port;
    (6) Each person and vessel in a safety zone shall obey any 
direction or order of the Captain of the Port;
    (7) 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
    (8) 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: March 5, 2015.
Stephen P. Metruck,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2015-06578 Filed 3-20-15; 8:45 am]
 BILLING CODE 9110-04-P