[Federal Register Volume 80, Number 226 (Tuesday, November 24, 2015)]
[Rules and Regulations]
[Pages 73115-73117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29835]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-1032]
RIN 1625-AA00


Safety Zone, Delaware River; New Castle, DE

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters encompassing Pea Patch Island Anchorage No. 5 and the upper 
portion of Reedy Point South Anchorage No. 3 to facilitate dredging in 
New Castle Range in the Delaware River. This regulation is necessary to 
provide for the safety of life on the navigable waters of the Delaware 
River in the vicinity of Pea Patch Island Anchorage No. 5 and Reedy 
Point South Anchorage No. 3. These closures are intended to restrict 
vessel anchoring to protect mariners from the hazards associated with 
ongoing pipe-laying and dredging operations.

DATES: This rule is effective without actual notice from November 24, 
2015 through December 31, 2015. For purposes of enforcement, actual 
notice will be used from November 20, 2015 through November 24, 2015.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2015-1032 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 on this 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].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice 
and

[[Page 73116]]

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 it is impractical given that the 
final details for the dredging operation were not received until 
November 12, 2015. Vessels attempting to enter the waters of either Pea 
Patch Island Anchorage No. 5 or the upper portion of Reedy Point South 
Anchorage No. 3 during pipe-laying or dredging operations may be at 
risk. Delaying this rule to wait for a notice and comment period to run 
would be contrary to the public interest as it would inhibit the Coast 
Guard's ability to protect the public from the hazards associated with 
pipe-laying and dredging operations. 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 allowing this dredging and pipe laying 
operation to go forward without a safety zone 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; 33 CFR 1.05-1 and 160.5; and Department of Homeland Security 
Delegation No. 0170.1. The Captain of the Port, Delaware Bay, has 
determined that potential hazards associated with dredging and pipe 
laying operations starting November 20, 2015, will be a safety concern 
for anyone attempting to transit in the Delaware River, along New 
Castle Range, in the vicinity of Pea Patch Island Anchorage No. 5, the 
upper portion of Reedy Point South Anchorage No. 3, and near the 
entrance to the C & D Canal. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone while dredging is being conducted.

IV. Discussion of the Rule

    The Coast Guard Captain of the Port is temporarily establishing a 
safety zone on the waters of Pea Patch Island Anchorage No. 5 and the 
upper portion of Reedy Point South Anchorage No. 3 from November 20, 
2015 to December 31, 2015, unless cancelled earlier by the Captain of 
the Port. The safety zone will include all waters within the boundaries 
of Pea Patch Island Anchorage No. 5 and all waters within a portion of 
Reedy Point South Anchorage No. 3 north of a line drawn between 
positions 39[deg]33'7.5'' N., 75[deg]33'2.0'' W. and 39[deg]33'8.8'' 
N., 75[deg]32'31.8'' W., as charted on NOAA chart 12311. The waters of 
the anchorages are described in 33 CFR 110.157. Entry into, transiting, 
or anchoring within the safety zone is prohibited unless vessels obtain 
permission from the Captain of the Port (COTP) or make satisfactory 
passing arrangements with the dredge ESSEX per this rule and the Rules 
of the Road (33 CFR chapter I, subchapter E).
    The Captain of the Port will terminate the safety zone once all 
submerged pipeline has been recovered and dredging operations are 
complete. Notice of the implementation and the termination of the 
safety zone will be made per 33 CFR 165.7.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and E.O.s, and we discuss 
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 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. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    This regulatory action determination is based on the size, 
location, and duration of the safety zone. Although this regulation 
will restrict access to the regulated area, the effect of this rule 
will not be significant because Pea Patch Island Anchorage No. 5 and 
Reedy Point Anchorage No. 3 are not frequently used anchorages for 
vessels in the Delaware River, especially during the period of the 
closure, and there are a number of alternate anchorages available for 
vessels to anchor. Furthermore, vessels may be permitted to transit 
through the safety zone with the permission of the Captain of the Port 
or upon making satisfactory passing arrangements with the dredge. 
Extensive notification of the safety zone 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 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 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 E.O. 13132, 
Federalism, if it has a substantial direct effect on the States,

[[Page 73117]]

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 E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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 complying with the National Environmental 
Policy Act of 1969(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 a safety zone in force from November 20, 2015 to December 
31, 2015, that prohibits entry of vessels in Pea Patch Island Anchorage 
No. 5 and the upper portion of Reed Point Anchorage No. 3. It 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.

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

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 temporary Sec.  165.T05-1032, to read as follows:


Sec.  165.T05-1032  Safety Zone, Delaware River; New Castle, DE

    (a) Location: The safety zone will include all waters within the 
boundaries of Pea Patch Island Anchorage No. 5 (as defined in 33 CFR 
110.157(a)(6)) and all waters within a portion of Reedy Point South 
Anchorage No. 3 (as defined in 33 CFR 110.157(a)(4)) north of a line 
drawn between positions 39[deg]33'7.5'' N, 75[deg]33'2.0'' W and 
39[deg]33'8.8'' N, 75[deg]32'31.8'' W, as charted on NOAA chart 12311. 
These coordinates are based upon North American Datum 83 (NAD 83).
    (b) Definitions.--(1) 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 his behalf.
    (2) Designated representative means any Coast Guard commissioned, 
warrant or petty officer who has been authorized by the Captain of the 
Port, Delaware Bay, to assist in enforcing the safety zone described in 
paragraph (a) of this section.
    (c) Regulations: The general safety zone regulations found in 33 
CFR part 165 subpart C apply to the safety zone created by this 
section.
    (1) Entry into, transiting, or anchoring within the safety zone is 
prohibited unless vessels obtain permission from the Captain of the 
Port (COTP) or make satisfactory passing arrangements, via VHF-FM 
channel 16, with the dredge ESSEX per this rule and the Rules of the 
Road (33 CFR chapter I, subchapter E).
    (2) To seek permission to transit the safety zone, the Captain of 
the Port's representative can be contact via VHF-FM channel 16.
    (3) Vessels granted permission to transit the safety zone must do 
so in accordance with the directions provided by the Captain of the 
Port or his designated representative.
    (4) No person or vessel may enter or remain in a safety zone 
without permission from the Captain of the Port;
    (5) Each person and vessel in a safety zone shall obey any 
direction or order of the Captain of the Port or his designated 
representative.
    (6) At least one side of the main navigational channel will be 
clear for safe passage of vessels in the vicinity of the safety zone. 
At no time will the main navigational channel be closed for vessel 
traffic. Vessels are advised to ensure safety passage by contacting the 
dredge ESSEX on VHF-FM channel 16 one hour prior to arrival.
    (7) This section applies to all vessels wishing to transit through 
the safety zone except vessels that are engaged in the following 
operations: enforcing laws; servicing aids to navigation, and emergency 
response vessels.
    (d) Enforcement officials. The U.S. Coast Guard may be assisted by 
Federal, State, and local agencies in the patrol and enforcement of the 
zone.
    (e) Enforcement period. This rule will be enforced from November 
20, 2015, to December 31, 2015, unless cancelled earlier by the Captain 
of the Port.

    Dated: November 18, 2015.
B.A. Cooper,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2015-29835 Filed 11-23-15; 8:45 am]
 BILLING CODE 9110-04-P