[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Rules and Regulations]
[Pages 88112-88115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29261]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-1034]
RIN 1625-AA00


Safety Zone, Delaware River; Marcus Hook, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of the 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 the Delaware River while 
rock blasting, dredging, and rock removal operations are being 
conducted to facilitate the Delaware River Main Channel Deepening 
project for the main navigational channel of the Delaware River. The 
safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by rock blasting, dredging, 
and rock removal operations. Entry of vessels or persons into this zone 
is prohibited unless specifically authorized by the Captain of the Port 
or his designated representatives.

DATES: This rule is effective without actual notice from December 7, 
2016 through March 15, 2017. For the purposes of enforcement, actual 
notice

[[Page 88113]]

will be used from December 1, 2016, through December 7, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-1034 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 First Class Tom Simkins, U.S. 
Coast Guard, Sector Delaware Bay, Waterways Management Division, 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
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
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 doing so would be impractical 
and contrary to the public interest because environmental restrictions 
put in place by the National Marine Fisheries Service to protect 
Shortnose and Atlantic sturgeon require all blasting operations to be 
conducted between December 1, 2016, and March 15, 2017. Due to the 
criticality of this phase of the Delaware River Main Channel Deepening 
project, immediate action is needed to accommodate operations while 
also ensuring vessels can safely transit through Marcus Hook Range in 
the Delaware River during this time. Going forward without establishing 
a safety zone would expose mariners and the public to unnecessary 
dangers associated with rock blasting, dredging, and rock removal 
operations. It is impracticable to publish an NPRM because the Coast 
Guard must establish this safety zone by December 1, 2016. The final 
details of the rock blasting, dredging, and rock removal operation were 
not received until November 23, 2016. Publishing an NPRM would be 
contrary to the public interest since immediate action is necessary to 
protect the public safety from rock blasting, dredging, and rock 
removal operations.
    For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this temporary rule effective 
less than 30 days after publication in the Federal Register. As noted 
above, blasting operations must be conducted between December 1, 2016, 
and March 15, 2017. Due to the need for immediate action, the 
restriction is necessary to protect life and property. Delaying the 
effective date would be contrary to the safety zone's intended 
objectives of protecting persons and vessels, and enhancing public and 
maritime safety.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port has determined that potential hazards 
associated with rock blasting, dredging, and rock removal operations 
starting December 1, 2016, will be a safety concern for anyone within 
500 yards of rock blasting, dredging, and rock removal operations. This 
rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the operational area.

IV. Discussion of the Rule

    This rule establishes a safety zone between December 1, 2016, and 
March 15, 2017. The safety zone will cover all navigable waters in the 
Delaware River within 500 yards of vessels and machinery being used by 
personnel to conduct rock blasting, dredging, and rock removal 
operations in the vicinity of Marcus Hook, PA, between the southern end 
of Marcus Hook Anchorage to the western end of Little Tinicum Island, 
at the entrance to Darby Creek. The safety zone will be enforced in an 
area and in a manner that does not conflict with transiting commercial 
and recreational traffic, except for the short periods of time when 
explosive detonation evolutions are being conducted. The blasting 
detonations will not occur more than three times a day. At all other 
times, at least one side of the main navigational channel will be open 
for vessels to transit.
    The duration of the zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters while operations 
are being conducted. For the duration of the project, in the vicinity 
of the rock blasting, rock removal, and dredging operation, one side of 
the main navigational channel will be closed. Vessels wishing to 
transit the safety zone in the main navigational channel may do so if 
they can make satisfactory passing arrangements with drill boat APACHE 
or the dredge TEXAS in accordance with the Navigational Rules in 33 CFR 
subchapter E via VHF-FM channel 13 at least 30 minutes prior to 
arrival. If vessels are unable to make satisfactory passing 
arrangements with the drill boat APACHE or the dredge TEXAS, they may 
request permission from the Captain of the Port, or his designated 
representative, on VHF-FM channel 16. All vessels must operate at the 
minimum safe speed necessary to maintain steerage and reduce wake.
    No vessels may transit through the safety zone during times of 
explosives detonation. During rock blasting detonation vessels will be 
required to maintain a 500 yard distance from the drill boat APACHE. 
The drill boat APACHE will make broadcasts, via VHF-FM channels 13 and 
16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well 
as a countdown to detonation on VHF-FM channel 16. Sector Delaware Bay 
will ensure significant notice will be given to the maritime community 
of dates and times of blasting via broadcast notice to mariners on VHF-
FM channel 16. After every explosive detonation a survey will be 
conducted to ensure the navigational channel is clear for vessels to 
transit. The drill boat APACHE will broadcast, via VHF-FM channel 13 
and 16, when the survey has been completed and the channel is clear to 
transit. Vessels wishing to transit the safety zone in the main 
navigational channel may do so if they can make satisfactory passing 
arrangements with drill boat APACHE or the dredge TEXAS in accordance 
with the Navigational Rules in 33 CFR subchapter E via VHF-FM channel 
13 at least 30 minutes prior to arrival. If vessels are unable to make 
satisfactory passing arrangements with the drill boat APACHE or the 
dredge TEXAS, they may request permission from the Captain of the Port, 
or his designated representative, on VHF-FM channel 16.

V. Regulatory Analyses

    We developed this 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.

[[Page 88114]]

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 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 traffic management of the safety zone. The 
Coast Guard does not anticipate a significant economic impact because 
the safety zone will be enforced in an area and in a manner that does 
not conflict with transiting commercial and recreational traffic, 
except for the short periods of time when explosive detonation 
evolutions are being conducted. The blasting detonations will not occur 
more than three times a day. At all other times, at least one side of 
the main navigational channel will be open for vessels to transit. 
Moreover, the Coast Guard will work in coordination with the pilots to 
ensure vessel traffic is limited during the times of detonation and 
Broadcast Notice to Mariners are made via VHF-FM marine channel 13 and 
16 when blasting operations will occur.

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 anchor in or 
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 a safety zone in force from December 1, 2016, through 
March 15, 2017, that prohibits entry within 500 yards of vessels and 
machinery being used by personnel conducting rock blasting, dredging, 
and rock removal operations in the Delaware River near Marcus Hook, PA 
between the southern end of Marcus Hook Anchorage to the western end of 
Little Tinicum Island, at the entrance to Darby Creek. 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.

H. Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive order 12988, Civil Justice 
Reform to eliminate ambiguity, minimize litigation, establish clear 
legal standards, and reduce burden.

[[Page 88115]]

List of Subjects 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 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.T05-1034, to read as follows:


Sec.  165.T05-1034  Safety Zone, Delaware River; Marcus Hook, PA.

    (a) Regulated area. The following area is a safety zone: All the 
waters of the Delaware River within 500 yards of vessels and machinery 
performing rock blasting, rock removal, and dredging operations, in the 
vicinity of Marcus Hook, PA, between the southern end of Marcus Hook 
Anchorage to the western end of Little Tinicum Island, at the entrance 
to Darby Creek.
    (1) Vessels wishing to transit the safety zone in the main 
navigational channel may do so if they can make satisfactory passing 
arrangements with the drill boat APACHE or the dredge TEXAS in 
accordance with the Navigational Rules in 33 CFR subchapter E via VHF-
FM channel 13 at least 30 minutes prior to arrival. If vessels are 
unable to make satisfactory passing arrangements with the drill boat 
APACHE or the dredge TEXAS, they may request permission from the 
Captain of the Port, or his designated representative, on VHF-FM 
channel 16.
    (2) The operator of any vessel requesting to transit through the 
safety zone shall proceed as directed by the drill boat APACHE, the 
dredge TEXAS or the designated representative of the Captain of the 
Port and must operate at the minimum safe speed necessary to maintain 
steerage and reduce wake.
    (3) No vessels may transit through the safety zone during times of 
explosives detonation. During rock blasting detonation vessels will be 
required to maintain a 500 yard distance from the drill boat APACHE. 
The drill boat APACHE will make broadcasts, via VHF-FM Channel 13 and 
16, at 15 minutes, 5 minutes, and 1 minute prior to detonation, as well 
as a countdown to detonation on VHF-FM Channel 16.
    (4) After every explosive detonation a survey will be conducted to 
ensure the navigational channel is clear for vessels to transit. The 
drill boat APACHE will broadcast, via VHF-FM channel 13 and 16, when 
the survey has been completed and the channel is clear to transit. 
Vessels requesting to transit through the safety zone shall proceed as 
directed by the designated representative of the Captain of the Port 
and contact the drill boat APACHE on VHF-FM channel 13 to make safe 
passing arrangements.
    (b) Definitions. As used in this section:
    Captain of the Port means Captain of the Port Delaware Bay. The 
Captain of the Port is also the Commander, U.S. Coast Guard Sector 
Delaware Bay, Philadelphia, PA.
    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.
    (c) Enforcement. The U.S. Coast Guard may be assisted by Federal, 
State and local agencies in the patrol and enforcement of the zone.
    (d) Enforcement period. This rule will be enforced from December 
01, 2016, through March 15, 2017, unless cancelled earlier by the 
Captain of the Port.

    Dated: December 1, 2016.
Benjamin A. Cooper,
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2016-29261 Filed 12-6-16; 8:45 am]
 BILLING CODE 9110-04-P