[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Rules and Regulations]
[Pages 34574-34576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12212]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0431]
RIN 1625-AA00


Safety Zone; Barge Fire; Captain of the Port Delaware Bay Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard establishing a temporary moving safety zone 
within the Captain of the Port Delaware Bay Zone near the barge with 
Hull Number: CMTYNOT6. This action is needed to provide for the safety 
of life on these navigable waters from a barge fire and all associated 
emergency response actions. This rulemaking prohibits persons and 
vessels from being in the regulated areas during the enforcement period 
unless authorized entry by the Captain of the Port (COTP), Delaware Bay 
Zone or a designated representative.

DATES: This rule is effective without actual notice from June 7, 2022 
through June 15, 2022. For the purposes of enforcement, actual notice 
will be used from May 30, 2022, until June 7, 2022 unless canceled 
earlier by the Captain of the Port Delaware Bay.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0431 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email email MST2 Thomas Welker, Waterways Management Division, 
Sector Delaware Bay, 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

    On May 23, 2022, the Coast Guard issued a rulemaking creating a 
temporary safety zone on the navigable waters of the Delaware Bay 
Captain of the Port Zone to protect persons and

[[Page 34575]]

vessels during response operations associated with a barge fire. A copy 
of the rulemaking ending on May 30, 2022, is available in the Docket 
USCG-2022-0431, which can be found using instructions in the ADDRESSES 
section. However, additional time is needed to conduct response and 
salvage operations including damage assessment, cargo removal, 
dewatering, and the movement of the barge to an adequate facility, and, 
as a result, the Coast Guard is establishing through temporary 
regulations a safety zone what will be in effect through June 15, 2022, 
unless canceled earlier by the COTP. 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 it would be impracticable and contrary to the public 
interest. The Coast Guard was unable to publish an NPRM and hold a 
reasonable comment period for this rulemaking due to the emergent 
nature of the barge fire response and salvage operations. Immediate 
action is needed to provide for the safety of life on these navigable 
waters during response and salvage 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 provide for the safety of life on 
these navigable waters during response and salvage operations.

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 (COTP) has determined that 
potential hazards associated with response and salvage operations will 
be a safety concern for anyone within a 500-yard radius of the barge 
(Hull Number: CMTYNOT6), and emergency response vessels, machinery, and 
equipment. This rule is needed to protect personnel, vessels, and the 
marine environment in the navigable waters within the safety zone while 
response and salvage operations are being conducted.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone that will be enforced 
from May 30, 2022, through June 15, 2022, unless canceled earlier by 
the Captain of the Port, Delaware Bay. The safety zone will cover all 
navigable waters in the Captain of the Port Delaware Bay Zone within 
500 yards of the barge (Hull Number: CMTYNOT6), and vessels, machinery, 
and equipment being used in response and salvage operations for that 
barge which had caught on fire on May 23, 2022. The duration of the 
zone is intended to protect personnel, vessels, and the marine 
environment in these navigable waters until completion of response and 
salvage operations. No vessel or person will be permitted to enter the 
safety zone without obtaining permission from the COTP or a designated 
representative.

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. 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).
    This regulatory action determination is based on the size and 
location of the safety zone. Vessel traffic will be able to safely 
transit around this safety zone which would impact a small designated 
area of the waters of the Delaware Bay Captain of the Port Zone. 
Moreover, the Coast Guard would issue a Broadcast Notice to Mariners 
via VHF-FM marine channel 16 about the 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 
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,

[[Page 34576]]

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.

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 a 
safety zone that will prohibit entry within 500 yards of the barge, 
vessels, and machinery being used in emergency response operations. It 
is categorically excluded from further review under paragraph L60(a) 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.

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: 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. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T05-0431 to read as follows:


Sec.  165.T05-0431   Safety Zone; Barge Fire; Captain of the Port 
Delaware Bay Zone

    (a) Location. The following area is a safety zone: All waters in 
the Captain of the Port Delaware Bay Zone within 500 yards, from 
surface to bottom, of the barge (Hull Number: CMTYNOT6), and vessels, 
machinery, and equipment being used in emergency response and salvage 
operations for that barge.
    (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 in the enforcement of the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter 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, contact the COTP or the COTP's 
representative by VHF 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.
    (d) Enforcement period. This section will be enforced from May 30, 
2022, through June 15, 2022, unless canceled earlier by the COTP.

    Dated: May 29, 2022.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2022-12212 Filed 6-6-22; 8:45 am]
BILLING CODE 9110-04-P