[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42809-42812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17709]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0238]
RIN 1625-AA00
Safety Zone; Delaware River; Baker Range, DE and NJ
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing two temporary moving safety
zones in the Baker Range portion of the Delaware River. This action is
necessary to provide for the safety of life and navigation on this
portion of the Delaware River during submarine power cable laying
operations. This regulation prohibits persons and vessels from entering
or transiting through the safety zone without prior authorization from
the Captain of the Port Delaware Bay or a designated representative.
DATES: This rule is effective from August 19, 2019 through December 31,
2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0238 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 Petty Officer Edmund Ofalt, 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
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
On October 2, 2018, the Harlan Electric Company notified the Coast
Guard of construction activities in the Delaware River involving
submerged cable laying operations. The submerged cable laying operation
was originally scheduled to begin on July 1, 2019, and continue through
September 20, 2019. In response to the notification, on May 3, 2019,
the Coast Guard published a notice of proposed rulemaking (NPRM) that
proposed a moving safety zone around the cable laying operations in the
Baker Range portion of the Delaware River (84 FR 19003, May 3, 2019).
There we stated why we issued the NPRM, and invited comments on our
proposed regulatory action related to this cable laying project. During
the comment period that ended June 3, 2019, we received one supportive
comment.
On July 29, 2019, Harlan Electric Company notified the Coast Guard
of its updated intentions to conduct cable
[[Page 42810]]
laying operations, and debris removal as needed. Due to the nature of
the equipment needed for anticipated debris removal, the Coast Guard is
adding an additional safety zone to address the risks posed by debris
removal operations in the navigable channel. Harlan Electric Company
also informed the Coast Guard of a new construction start date.
The Coast Guard is issuing this temporary rule with two safety
zones and different effective dates 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 second notice of proposed rulemaking
(NPRM) with respect to this rule because it is impracticable and
contrary to the public interest to do so. There is insufficient time to
allow for a reasonable comment period prior to the start of the
construction activities in the Delaware River. The rule must be in
force by August 19, 2019 when the cable laying project will commence.
We are taking immediate action to ensure the safety of vessels and the
general public from hazards associated with the submerged cable laying
operations.
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. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
respond to the potential safety hazards associated with submarine cable
laying operations within the main navigational channel.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Delaware Bay has determined that
potential hazards associated with submarine cable laying operations
will be a safety concern for anyone within 300 yards of the cable
laying barge ULISSE and any associated equipment. The purpose of this
rule is to ensure safety of vessels and the navigable waters in the
safety zone during cable laying and debris removal operations that will
take place in and around the main navigational channel in the Baker
Range portion of the Delaware River.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received one comment on our NPRM. The comment
was supportive of the safety zone and did not suggest changes to the
proposed rule. However, we made two changes to the regulatory text of
this rule from the proposed rule in the NPRM because the party
responsible for the construction provided us with new information
regarding the cable laying project after the comment period closed.
The first change is to the effective dates of the work. Due to
unforeseen project delays, the start date for the portion of the
project that will impact the navigational channel is now anticipated to
be August 19, 2019. Subsequently, the end date for these operations is
now anticipated to be on or about December 31, 2019. Due to the
adjustments in start and end dates, the enforcement dates have been
adjusted accordingly.
The second change adds a safety zone to address potential dredge
vessels that may need to move large obstructions from the river bottom
to achieve the required depth for the cable. This second zone applies
to all navigable waters within 300 yards of dredge equipment within and
in the vicinity of the Baker Range portion of the Delaware River.
Adding this second zone also required minor changes throughout the
regulatory text to make wording and regulation structure consistent
with multiple zones instead of just one zone.
This rule establishes two safety zones from August 19, 2019,
through December 31, 2019. Safety zone one encompasses all navigable
waters within 300 yards of ULISSE and associated equipment during
submarine cable laying operations. Safety zone two encompasses all
navigable waters within 300 yards of dredging vessels and equipment
within the Baker Range portion of the Delaware River.
The duration of these safety zones is intended to ensure the safety
of vessels and these navigable waters during submarine cable laying
operations and debris removal within and in the vicinity of the Baker
Range portion of the Delaware River. No vessel or person will be
permitted to enter the safety zones without obtaining permission from
the COTP or a designated representative. However, vessels may transit
either safety zone without contacting the COTP or a designated
representative if the vessel maintains the minimum safe speed to reduce
wake and maintain steerage, if the vessel contacts ULISSE and arranges
safe passage, and if the vessel can complete its transit through the
zone when cable laying or debris removal operations are not occurring
within the Baker Range Channel.
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, this rule 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, duration, and time-of-day of the safety zone. Vessel traffic
will be able to safely transit around and through these safety zones
which would impact a small designated area of the Delaware River for
approximately four hours at a time for no more than four months.
Working vessels will be in communication with inbound commercial
traffic and ensure that the obstruction periods take place when the
impact will be minimal. Moreover, the Coast Guard will issue a
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the
zones and the rule allows vessels to seek permission to enter the zones
and even provides the opportunity for vessels to transit the zones
without permission under certain conditions.
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 received no comments from the Small Business
Administration on this rulemaking. The Coast Guard
[[Page 42811]]
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
call or email 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 call or email the person listed in the FOR FURTHER INFORMATION
CONTACT section.
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
Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series),
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 two moving safety zones that will
prohibit entry within 300 yards of the cable laying barge ULISSE and
associated equipment as well as dredge vessels working within, and in
the vicinity of, the Baker Range portion of the Delaware River. It is
categorically excluded from further review under paragraph L60(a) in
Table 3-1 of U.S. Coast Guard Environmental Planning Implementing
Procedures. A Record of Environmental Consideration 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 call or email 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 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: 46 U.S.C. 70034, 70051; 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.T05-0238 to read as follows:
Sec. 165.T05-0238 Safety Zone; Delaware River; Baker Range, PA.
(a) Location. The following areas are safety zones:
(1) Safety zone one includes all navigable waters within 300 yards
of the barge ULISSE while it is exhibiting lights or shapes indicating
it is restricted in its ability to maneuver per Sec. 83.27 of this
chapter during submarine cable laying operations in and around Baker
Range on the Delaware River.
(2) Safety zone two includes all navigable waters within 300 yards
of the dredge exhibiting lights or shapes indicating it is restricted
in its ability to maneuver per Sec. 83.27 of this chapter while
removing debris in support of ULISSE cable laying operations in and
around Baker Range on the Delaware River.
(b) Definitions. As used in this section, designated representative
means a Coast Guard Patrol Commander, including a Coast Guard coxswain,
petty officer, or other officer operating a Coast Guard vessel and a
Federal, State, and local officer designated by or assisting the
Captain of the Port Delaware Bay (COTP) in the enforcement of the
safety zone.
(c) Regulations. (1) In accordance with the general safety zone
regulations in subpart C of this part and except for as described in
paragraph (c)(3) of this section, vessels may not enter, remain in, or
transit the safety zone described in paragraph (a) of this section
unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter or remain in the zone contact the
COTP or the COTP's representative via VHF-FM Channel 16. Those in the
safety zone must comply with all lawful orders or directions given to
them by the COTP or the COTP's designated representative.
(3) Vessels may, without prior authorization from the COTP or
COTP's representative, transit safety zone one if they meet all of the
following criteria
[[Page 42812]]
and safety zone two if they meet the criteria in paragraphs (c)(3)(i)
and (ii) of this section:
(i) Vessel must contact the ULISSE and arrange for safe passage.
(ii) Vessel shall maintain the minimum safe speed to reduce wake
and maintain steerage.
(iii) Vessel may begin, and must complete, its transit through
safety zone one only when ULISSE is not conducting cable laying
operations within Baker Range Channel. Cable laying operations within
the channel will be announced via Broadcast Notice to Mariners, are
expected to last approximately 4 hours at a time, and will be visually
signaled by ULISSE displaying lights or shapes exhibiting restricted in
ability to maneuver.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the safety zone by Federal, State, and local
agencies.
(e) Enforcement period. Enforcement of the safety zone will begin
August 19, 2019, and continue through December 31, 2019.
Dated: August 13, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2019-17709 Filed 8-16-19; 8:45 am]
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