[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Rules and Regulations]
[Pages 40486-40489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18033]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0811]
RIN 1625-AA00


Safety Zone, Delaware River; Dredging

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; with request for comments.

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

SUMMARY: The Coast Guard is establishing temporary safety zones in 
portions of Bellevue Range, Marcus Hook Range, Anchorage 7 off Marcus 
Hook Range, Chester Range, and Eddystone Range, on the Delaware River, 
in Philadelphia, PA. The safety zone will temporarily restrict vessel 
traffic from transiting or anchoring in a portion of the Delaware River 
while dredging operations are being conducted to facilitate the 
Delaware River Main Channel Deepening project for the main navigational 
channel of the Delaware River. This regulation is necessary to provide 
for the safety of life on navigable waters of the Delaware River, in 
the vicinity of dredging activity and is intended to protect mariners 
from the hazards associated with pipe-laying and dredging operations.

DATES: This rule is effective from August 30, 2017, through March 15, 
2018.

ADDRESSES: You may submit comments identified by docket number USCG-
2017-0811 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
rulemaking, call or email Petty Officer Amanda Boone, U.S. Coast Guard, 
Sector Delaware Bay, Waterways Management Division, telephone (215) 
271-4814, 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 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. Final details for the dredging 
operation were not received by the Coast Guard until August 10, 2017. 
Vessels transiting through Bellevue Range, Chester Range, Eddystone 
Range, and Marcus Hook Range or attempting to enter the waters of 
Anchorage 7 off Marcus Hook Range during dredging operations may be at 
risk. We are taking immediate action to help protect the safety of the 
project personnel, vessels, and the marine environment on the navigable 
waters within the safety zones while dredging is being conducted. It is 
important to have these regulations in effect during dredging 
operations and it is impracticable to delay the regulations.
    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 doing so would 
be contrary to the public interest. Allowing this dredging operation to 
go forward without safety zones in place would expose mariners and the 
public to unnecessary dangers.

[[Page 40487]]

    Even though the normal comment process was shortened for this rule, 
we are providing an opportunity for public comment and, should public 
comment show the need for modifications to the regulated area, we may 
make those modifications to the safety zone and provide notice of those 
modifications to the affected public.

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 (COTP), Delaware Bay, has determined that 
potential hazards associated with dredging operations beginning August 
30, 2017, will be a safety concern for vessels attempting to transit 
the Delaware River, along Bellevue Range, Marcus Hook Range, Anchorage 
7 off Marcus Hook Range, Chester Range, and Eddystone Range. This rule 
is needed to protect personnel, vessels, and the marine environment on 
the navigable waters within the safety zones while dredging operations 
are being conducted.

IV. Discussion of the Rule

    The COTP is temporarily establishing safety zones on portions of 
the Delaware River from August 30, 2017 until March 15, 2018, unless 
cancelled earlier by the COTP. The safety zone is necessary to 
facilitate the main channel deepening of the Delaware River to 45 feet 
in Bellevue Range, Marcus Hook Range, Anchorage 7 off Marcus Hook Range 
(as described in 33 CFR 110.157(a)(8)), Chester Range, and Eddystone 
Range. Maintenance dredging in the channel will be conducted with the 
dredges ESSEX and CHARLESTON along with the associated dredge pipeline. 
Pipeline will be a combination of floating hoses immediately behind the 
dredge and submerged pipeline leading to upland disposal areas. Due to 
the hazards related to dredging operations, the associated pipeline, 
and the location of the submerged pipeline, safety zones will be 
established in the following areas:
    (1) Safety zone one includes all waters within 250 yards of the 
dredge and all related dredge equipment. This safety zone will be 
established for the duration of the maintenance project. Vessels 
requesting to transit shall contact the dredge ESSEX and/or dredge 
CHARLESTON on VHF channel 13 or 16, at least 1 hour, as well as 30 
minutes, prior to arrival. At least one side of the main navigational 
channel will be kept clear for safe passage of vessels in the vicinity 
of the safety zones. At no time will the main navigational channel be 
closed to vessel traffic. Vessels should approach meetings in these 
areas where one side of the main navigational channel is open and 
proceed per this rule and the Rules of the Road (33 CFR subchapter E).
    (2) Safety zone two includes all the waters of Anchorage 7 off 
Marcus Hook Range, as described in 33 CFR 110.157(a)(8). Vessels 
wishing to anchor in Anchorage 7 off Marcus Hook Range must obtain 
permission from the COTP at least 24 hours in advance by calling (215) 
271-4807. The COTP will permit two vessels at a time to anchor on a 
``first-come, first-served'' basis. Vessels will only be allowed to 
anchor for a 12 hour period. Vessels that require an examination by the 
Public Health Service, Customs, or Immigration authorities will be 
directed to an anchorage for the required inspection by the COTP. 
Vessels are encouraged to use Anchorage 9 near entrance to Mantua 
Creek, Anchorage 10 at Naval Base, Philadelphia, and Anchorage 6 off 
Deepwater Point Range as alternative anchorages.
    Entry into, transiting, or anchoring within the safety zones is 
prohibited unless vessels obtain permission from the COTP or make 
satisfactory passing arrangements with the dredge ESSEX and/or dredge 
CHARLESTON per this rule and the Rules of the Road (33 CFR subchapter 
E).
    The COTP will implement and terminate the safety zones individually 
once all submerged pipeline has been recovered and dredging operations 
are completed in each respective range. Notice of the implementation 
and the termination of the safety zone will be made in accordance with 
33 CFR 165.7.

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.

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, it 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 size, 
location, and duration of the safety zones. Although this regulation 
will restrict access to regulated areas, the effect of this rule will 
not be significant because 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 COTP or 
make satisfactory passing arrangements with the dredges ESSEX and/or 
CHARLESTON in accordance with this rule and the Rules of the Road (33 
CFR subchapter E). Notification of the safety zones 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

[[Page 40488]]

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 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 will close only one side of the main 
navigational channel and vessels can request permission to enter the 
channel. 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 under ADDRESSES.

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.

VI. Public Participation and Comments

    We encourage you to submit comments on this temporary final rule 
through the Federal eRulemaking Portal at http://www.regulations.gov. 
If your material cannot be submitted using http://www.regulations.gov, 
contact the person in the FOR FURTHER INFORMATION CONTACT section of 
this document for alternate instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this temporary final rule as being available 
in the docket, and all public comments, will be in our online docket at 
http://www.regulations.gov and can be viewed by following that Web 
site's instructions. Additionally, if you go to the online docket and 
sign up for email alerts, you will be notified when comments are 
posted.

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 proposes 
to amend 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.T05-0811, to read as follows:


Sec.  165.T05-0811  Safety Zone, Delaware River; Dredging.

    (a) Location. The following areas are safety zones:
    (1) Safety zone one includes all waters within 250 yards of the 
dredge ESSEX and dredge CHARLESTON including all related dredge 
pipeline and equipment.
    (2) Safety zone two includes all the waters of Anchorage 7 off 
Marcus Hook Range, as described in 33 CFR 110.157(a)(8). The safety 
zone will be in place only during the time in which the dredge ESSEX 
and/or dredge CHARLESTON are conducting dredging operations in Marcus 
Hook Range and Anchorage 7 off Marcus Hook.
    (b) Definitions--(1) Captain of the Port means the Commander 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 their 
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 with the enforcement of safety zones 
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) Safety zone one will be established for the duration of the 
project. Vessels shall contact the dredge ESSEX and/or dredge 
CHARLESTON on VHF channel 13 or 16, at least 1 hour, as well as 30 
minutes, prior to arrival. At least one side of the main navigational 
channel will be kept clear for safe passage of vessels in the vicinity 
of the safety zones. At no time will the main navigational channel be 
closed to vessel traffic. Vessel should approach meetings in these 
areas, where one side of the main navigational channel is open, and 
proceed per this rule and the Rules of the Road (33 CFR subchapter E).
    (2) Safety zone two will be in place only during the time that 
dredges ESSEX or CHALRESTON are conducting dredging operations in 
Marcus Hook Range and Anchorage 7 off Marcus Hook. Vessels requesting 
to transit Marcus Hook Range shall contact

[[Page 40489]]

the dredge ESSEX OR dredge CHARLESTON on VHF channel 13 or 16, at least 
1 hour, as well as 30 minutes, prior to arrival. Vessels shall then 
transit around the dredge project, utilizing Anchorage 7 off Marcus 
Hook Range, while operating at the minimum safe speed necessary to 
maintain steerage and reduced wake.
    (3) Vessels wishing to anchor in Anchorage 7 off Marcus Hook Range 
must obtain permission from the COTP at least 24 hours in advance by 
calling (215) 271-4807. The COTP will permit two vessels at a time to 
anchor on a ``first-come, first-served'' basis. Vessels will only be 
allowed to anchor for a 12 hour period. Vessels that require an 
examination by the Public Health Service, Customs, or Immigration 
authorities will be directed to an anchorage for the required 
inspection by the COTP. Vessels are encouraged to use Anchorage 9 near 
entrance to Mantua Creek, Anchorage 10 at Naval Base, Philadelphia, and 
Anchorage 6 off Deepwater Point alternative anchorages.
    (4) The Captain of the Port will implement and terminate the safety 
zones individually once all submerged pipeline has been recovered and 
dredging operations are completed in each range respectively. Notice of 
the implementation and the termination of the safety zone will be made 
in accordance with 33 CFR 165.7.
    Entry into, transiting, or anchoring within the safety zones is 
prohibited unless vessels obtain permission from the Captain of the 
Port or make satisfactory passing arrangements with the dredge ESSEX 
and/or dredge CHARLESTON per this rule and the Rules of the Road (33 
CFR subchapter E).
    (5) To request permission to enter the safety zone, the Captain of 
the Port's representative can be contacted via VHF-FM channel 16. 
Vessels granted permission to enter and transit through the safety zone 
must do so in accordance with the directions provided by the Captain of 
the Port or designated representative. No person or vessel may enter or 
remain in a safety zone without permission from the Captain of the 
Port. All persons and vessels within a safety zone shall obey the 
directions or orders of the Captain of the Port or their designated 
representative.
    (6) At least one side of the main navigational channel will be kept 
clear for safe passage of vessels in the vicinity of the safety zones. 
At no time will the main navigational channel be closed to vessel 
traffic. Vessels requesting to transit shall contact the dredge ESSEX 
and/or dredge CHARLESTON on VHF channel 13 or 16, at least 1 hour, as 
well as 30 minutes, prior to arrival.
    (7) This section applies to all vessels that intend to transit 
through the safety zones except vessels that are engaged in the 
following operations: enforcement of laws; service of aids to 
navigation, and emergency response.
    (d) Effective and enforcement periods. The safety zones established 
in paragraph (a) of this section will be effective from August 30, 2017 
through March 15, 2018, unless cancelled earlier by the Captain of the 
Port once all operations are completed. The safety zones will be 
enforced with actual notice by Coast Guard representatives on scene, as 
well as other methods listed in 33 CFR 165.7.

    Dated: August 21, 2017.
Scott E. Anderson,
Captain, U.S. Coast Guard Captain of the Port, Delaware Bay.
[FR Doc. 2017-18033 Filed 8-24-17; 8:45 am]
BILLING CODE 9110-04-P