[Federal Register Volume 81, Number 191 (Monday, October 3, 2016)]
[Rules and Regulations]
[Pages 67909-67911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23782]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0899]
RIN 1625-AA00


Safety Zone; Diving Operations, Delaware River, Philadelphia, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Delaware River in Philadelphia, PA, on October 3, 2016, from 7 a.m. 
through 11 a.m. During the period of enforcement, the safety zone will 
restrict vessel traffic on the waters of the Delaware River, adjacent 
to Penn's Landing, Philadelphia, PA. The safety zone is intended to 
provide for the safety of personnel involved in diving operations.

DATES: This rule is effective from 7 a.m. through 11 a.m. on October 3, 
2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0899 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 MST1 Thomas Simkins, Sector Delaware Bay Waterways 
Management Division, U.S. Coast Guard; telephone 215-271-4889, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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 a safety zone is needed to ensure 
safety of life and property for those vessels involved in the diving 
operations and those persons transiting the Delaware River. In this 
case, waiting for a comment period to run would be contrary to the 
public interest of protecting life and property. In addition, 
publishing an NPRM is impracticable as the requestors did not provide 
sufficient notice to the Coast Guard relating to the expected date of 
the diving operations. Therefore, delay in taking action is both 
impracticable and contrary to public interest.
    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. Delaying the effective 
date of this rule would be contrary to public interest because 
immediate action is needed to respond to the potential safety hazards 
associated with diving operations.

III. Legal Authority and Need for Rule

    The legal basis for the rule is provided by 33 U.S.C. 1231. On 
October 3, 2016, diving operations will be conducted from the Penn's 
Landing pier. Due to the proximity of the pier to the navigable 
channel, and the diving operations, vessel traffic will be restricted 
from entering the safety zone during the designated date and time, 
which accounts for staging as well as the actual diving operations. 
This rule is required in order to safely facilitate diving operations 
and protect both life and property on the navigable waterways of the 
Delaware River.

IV. Discussion of the Rule

    To mitigate the risks associated with necessary diving operations, 
the Captain of the Port, Delaware Bay is establishing a temporary 
safety zone in the vicinity of the diving site. The safety zone will 
encompass all waters of Delaware River, adjacent to Penn's Landing, 
Philadelphia, PA, bounded from shoreline to shoreline, bounded on the 
south by a line running east to west from points along the shoreline at 
latitude 39[deg]56'31.2'' N., longitude 075[deg]08'28.1'' W.; thence to 
latitude 39[deg]56'29.1'' N., longitude 075[deg]07'56.5'' W., and 
bounded on the north by the Benjamin Franklin Bridge. The safety zone 
will be effective and enforced from 7 a.m. through 11 p.m. on Monday, 
October 3, 2016. Entry into, transiting, or anchoring within the safety 
zone is prohibited unless authorized by the Captain of the Port, 
Delaware Bay, or his on-scene representative. The Captain of the Port, 
Delaware Bay, or his on-scene representative may be contacted via VHF 
channel 16.

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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of

[[Page 67910]]

harmonizing rules, and of promoting flexibility. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, it has not been reviewed by the Office of 
Management and Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. This safety 
zone will impact the waters affected by this rule from 7 a.m. through 
11 a.m. on October 3, 2016, during a time of year when vessel traffic 
is normally low. In addition, notifications will be made to the 
maritime community via marine information broadcasts so mariners may 
adjust their plans accordingly. Such notifications will be updated as 
necessary, to keep the maritime community informed of the status of the 
safety zone.

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 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 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 establishing a temporary safety zone lasting four hours 
that will prohibit entry into a portion of the Delaware River. 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 Sec.  165.T05-0899 to read as follows:


Sec.  165.T05-0899  Safety Zone; Diving Operations, Delaware River, 
Philadelphia, PA.

    (a) Regulated area. The following area is a safety zone: All waters 
of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, 
bounded from shoreline to shoreline, bounded on the south by a line 
running east to west from points along the shoreline at latitude 
39[deg]56'31.2'' N., longitude 075[deg]08'28.1'' W.; thence to latitude 
39[deg]56'29.1'' N., longitude 075[deg]07'56.5'' W., and bounded on the 
north by the Benjamin Franklin Bridge.

[[Page 67911]]

    (b) Regulations. The general safety zone regulations found in Sec.  
165.23 apply to the safety zone created by this temporary section, 
Sec.  165.T05-0899.
    (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) The Coast Guard vessels enforcing this safety zone can be 
contacted on VHF-FM marine band radio channel 16 (156.8 MHZ). Upon 
being hailed by a U.S. Coast Guard vessel, or other Federal, State, or 
local agency vessel operating under the authority of the COTP Delaware 
Bay, by siren, radio, flashing light, or other means, the operator of a 
vessel shall proceed as directed. The COTP Delaware Bay and his 
designated representatives can be contacted at telephone number 215-
271-4807.
    (c) Definitions. As used in this section:
    Captain of the Port Delaware Bay means the Commander, U.S. Coast 
Guard Sector Delaware Bay, Philadelphia, PA.
    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.
    (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 period. This section will be enforced from 7 a.m. 
through 11 a.m. on October 3, 2016.

Benjamin A. Cooper,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2016-23782 Filed 9-30-16; 8:45 am]
BILLING CODE 9110-04-P