[Federal Register Volume 85, Number 18 (Tuesday, January 28, 2020)]
[Rules and Regulations]
[Pages 4907-4910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00607]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0001]
RIN 1625-AA00


Safety Zone; Delaware River Rock Blasting, Marcus Hook, PA

AGENCY: Coast Guard, DHS.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Coast Guard is establishing three temporary safety zones 
on the waters of the Delaware River in portions of Marcus Hook Range, 
Tinicum Range and Anchorage 7 off Marcus Hook Range. The safety zones 
will temporarily restrict vessel traffic from transiting or anchoring 
in portions of the Delaware River while rock blasting, dredging, and 
rock removal operations are being conducted to facilitate the Main 
Channel Deepening project, and annual maintenance project for the 
Delaware River. The safety zones are needed to protect personnel, 
vessels, and the marine environment from hazards created by rock 
blasting, dredging, and rock removal operations. Entry of vessels or 
persons into these zones is prohibited unless specifically authorized 
by the COTP or his designated representatives.

DATES: This interim rule is effective without actual notice from 
January 28, 2020 through March 15, 2020. For the purposes of 
enforcement, actual notice will be used from January 12, 2020, through 
January 28, 2020.
    Comments and related material must be received by the Coast Guard 
on or before February 12, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0001 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.
    You may submit comments identified by docket number USCG-2020-0001 
using the Federal eRulemaking Portal at https://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 on this rule, 
call or email Petty Officer Edmund Ofalt, Waterways Management Branch, 
U.S. Coast Guard Sector Delaware Bay; 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 interim 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 it is impracticable and contrary to 
the public interest. There is insufficient time to allow for a 
reasonable comment period prior to the start date for blasting and 
dredging operations. The rule must be in force by January 12, 2020, to 
serve its purpose of ensuring the safety of the general public from 
hazards associated with rock blasting, dredging, and rock removal 
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 and contrary to the public interest 
because immediate action is needed to mitigate the potential safety 
hazards associated with rock blasting, dredging, and rock removal 
operations in these locations.
    We are soliciting comments on this rulemaking. If the Coast Guard 
determines that changes to the rule are necessary we will publish a 
subsequent

[[Page 4908]]

rulemaking document in the Federal Register.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that there 
are potential hazards associated with the rock blasting and dredging 
operations. The purpose of this rulemaking is to ensure the safety of 
personnel, vessels, and the marine environment within the vicinity of 
rock blasting, dredging, and rock removal operations.

IV. Discussion of the Rule

    This rule establishes three safety zones from January 12, 2020, 
through March 15, 2020. The safety zones are necessary to facilitate 
the main channel deepening and annual maintenance of the Delaware River 
from Marcus Hook Range to Tinicum Range, and Anchorage 7 off Marcus 
Hook Range (as described in 33 CFR 110.157(a)(8)). Rock drilling, 
hammering, removal, and dredging operations will most likely be 
conducted with the drill boat APACHE, dredge NEW YORK, and dredge 
ESSEX, though other dredges may be used, along with associated dredge 
pipeline and boosters. The pipeline consists of a combination of 
floating hoses immediately behind the dredge ESSEX and submerged 
pipeline leading to upland disposal areas. Due to the hazards related 
to rock drilling, hammering, removal, and dredging operations, the 
associated pipeline and the location of submerged pipeline, safety 
zones are being established in the following areas:
    (1) Safety zone one includes all navigable waters within 250 yards 
of the dredge displaying lights and shapes for vessels restricted in 
ability to maneuver as described in 33 CFR 83.27 and all related dredge 
equipment when the dredge is operating in New Castle Range, Marcus Hook 
Range, Deepwater Point Range, and Anchorage 7. This safety zone is 
being established for the duration of the maintenance project. Vessels 
requesting to transit the safety zone must contact the dredge on VHF 
channel 13 or 16 at least 1 hour prior to arrival to arrange safe 
passage. At least one side of the main navigational channel will be 
kept clear for safe passage of vessels in the vicinity of the safety 
zone. At no time will the entire main navigational channel be closed to 
vessel traffic. Vessels should avoid 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 only one vessel to anchor at a time 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 by the COTP for the required inspection. 
Vessels are encouraged to use Anchorage 9 near the entrance to Mantua 
Creek, Anchorage 10 at Naval Base, Philadelphia, and Anchorage 6 off 
Deepwater Point Range as alternative anchorages.
    (3) Safety zone three covers all navigable waters in the Delaware 
River within 500 yards of vessels and machinery being used to conduct 
rock blasting, dredging, and rock removal operations between Marcus 
Hook Range and Tinicum Range.
    Entry into, transiting, or anchoring within safety zone one is 
prohibited unless vessels obtain permission from the COTP or make 
satisfactory passing arrangements with the operating dredge per this 
rule and the Rules of the Road (33 CFR subchapter E). Though the dredge 
ESSEX, and the dredge NEW YORK are the primary dredges to be used in 
these operations, the COTP may update the information and the dredges 
being utilized with these dredging operations via Marine Safety 
Information Bulletin and Broadcast Notice to Mariners.
    Safety zone three 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 detonations are 
being conducted and shortly thereafter, when the channel is being 
surveyed to ensure the navigational channel is clear for vessels to 
transit. It is expected that these 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. This rule 
describes communications for notifying waterway users of upcoming 
detonations and provides means for waterway users to request entry into 
the safety zone.
    The COTP will activate and terminate the safety zones individually 
once all submerged pipeline has been recovered and dredging operations 
are completed in each respective area. Notice of the activation and the 
termination of the safety zones 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, 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 traffic management of the safety zone. 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 detonations are being 
conducted. It is anticipated that 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.
    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 transit through the safety zones with the 
permission of the COTP or make satisfactory passing arrangements with 
the dredge ESSEX, drill boat APACHE, dredge NEW YORK or other dredges 
that may be used 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.

[[Page 4909]]

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 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule has a 
significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule economically affects it.
    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 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 
Directive 023-01, Rev. 1, associated implementing instructions, 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 safety 
zones to protect waterway users that would prohibit entry within 500 
yards of rock blasting, dredging, and rock removal conducted by the 
drill boat APACHE and the dredge NEW YORK, within 250 yards of the 
dredge ESSEX and associated equipment, and within Marcus Hook Anchorage 
(No. 7) without prior approval. Vessels can request permission to enter 
the safety zones. It is categorically excluded from further review 
under paragraph L[60a] of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://www.regulations.gov, call or email 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 https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and 
submissions in response to this document, see DHS's Correspondence 
System of Records notice (84 FR 48645, September 26, 2018).
    Documents mentioned in this interim final rule as being available 
in the docket, and all public comments, will be in our online docket at 
https://www.regulations.gov and can be viewed by following that 
website's instructions.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping

[[Page 4910]]

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.T05-0001, to read as follows:


Sec.  165.T05-0001   Safety Zone, Delaware River Rock Blasting; Marcus 
Hook, PA.

    (a) Location. The following areas are safety zones:
    (1) Safety zone one includes all waters within 250 yards of the 
dredge displaying lights and shapes for vessels restricted in ability 
to maneuver as described in 33 CFR 83.27, as well as all related dredge 
equipment, while the dredge is operating in Marcus Hook Range. For 
enforcement purposes Marcus Hook Range includes all navigable waters of 
the Delaware River shoreline to shoreline, bound by a line drawn 
perpendicular to the center line of the channel at the farthest upriver 
point of the range to a line drawn perpendicular to the center line of 
the channel at the farthest downriver point of the range.
    (2) Safety zone two includes all the waters of Anchorage 7 off 
Marcus Hook Range, as described in 33 CFR 110.157(a)(8) and depicted on 
U.S. Nautical Chart 12312.
    (3) Safety zone three includes all the navigable waters of the 
Delaware River within 500 yards of vessels and machinery performing 
rock blasting, rock removal, and dredging operations, between Marcus 
Hook Range and Tinicum Range.
    (b) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the Captain of the Port to assist with enforcement 
of the safety zone described in paragraph (a) of this section.
    (c) Regulations. (1) Entry into or transiting within the safety 
zone one is prohibited unless vessels obtain permission from the 
Captain of the Port via VHF-FM channel 16 or 215-271-4807, or make 
satisfactory passing arrangements via VHF-FM channel 13 or 16 with the 
operating dredge per this section and the rules of the Road (33 CFR 
subchapter E). Vessels requesting to transit shall contact the 
operating dredge via VHF-FM channel 13 or 16 at least 1 hour prior to 
arrival.
    (2) Vessels desiring to anchor in safety zone two, 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 one 
vessel 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.
    (3) The operator of any vessel requesting to transit through safety 
zone three shall proceed as directed by the drill boat APACHE, the 
dredge TEXAS and NEW YORK, 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.
    (4) No vessels may transit through safety zone three during times 
of explosive detonation. During explosive 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 by 
the dredging contractor 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 Captain of the Port and contact 
the drill boat APACHE on VHF-FM channel 13 to make safe passing 
arrangements.
    (5) This section applies to all vessels except those engaged in the 
following operations: Enforcement of laws, service of aids to 
navigation, and emergency response.
    (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 rule will be enforced from January 12, 
2020, through March 15, 2020, unless cancelled earlier by the Captain 
of the Port.

    Dated: January 10, 2020.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2020-00607 Filed 1-27-20; 8:45 am]
 BILLING CODE 9110-04-P