[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2523-2525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00665]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-1004]
RIN 1625-AA00


Safety Zones; Delaware River Dredging, Marcus Hook, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

DATES: This rule is effective without actual notice from January 17, 
2023 through April 15, 2023. For the purposes of enforcement, actual 
notice will be used from January 10, 2023 until January 17, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-1004 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 Petty Officer Dylan Caikowski, Waterways Management 
Branch, U.S. Coast Guard Sector Delaware Bay; 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

    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 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 dredging 
operations. The rule must be in force by January 10, 2023 to serve its 
purpose of ensuring the safety of the public from hazards associated 
with dredging operations, such as submerged and floating pipeline, 
booster pumps, head sections and vessels with a restricted ability to 
maneuver.
    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 for the same reasons discussed 
above.

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 dredging operations. The purpose 
of this rulemaking is to ensure the safety of personnel, vessels, and 
the marine environment within a 250-yard radius of dredging operations 
and all associated pipeline and equipment.

IV. Discussion of the Rule

    This rule establishes two safety zones from January 10, 2023, 
through April 15, 2023. The safety zones are necessary to facilitate 
annual maintenance dredging of the Delaware River in the vicinity of 
Marcus Hook Range and Anchorage 7 off Marcus Hook Range (as described 
in 33 CFR 110.157(a)(8)). Dredging will most likely be conducted with 
the 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 and 
submerged pipeline leading to upland disposal areas. Due to the hazards 
related to 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

[[Page 2524]]

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 Marcus Hook 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 
meeting 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 while this rule 
is in effect must obtain permission from the COTP at least 24 hours in 
advance by calling (215) 271-4807. Vessels requesting permission to 
anchor within Anchorage 7 off Marcus Hook must be at least 650 feet in 
overall length. The COTP will permit, at maximum, 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.
    Preference is being given to vessels at least 650 feet in length in 
Anchorage 7 while this rule is in effect, because vessels of this size 
are limited in their ability to utilize other anchorages due to draft. 
Smaller vessels maintain a host of other options to include, but are 
not limited to, Anchorage 9 and 10 as recommended above.
    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). The COTP may 
issue updates regarding the vessel and equipment being utilized for 
these dredging operations via Marine Safety Information Bulletin and 
Broadcast Notice to Mariners.

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 size, location, 
duration, and traffic management of the safety zones. The safety zones 
will be enforced in an area and in a manner that does not conflict with 
transiting commercial and recreational traffic. At least one side of 
the main navigational channel will be open for vessels to transit at 
all times. Moreover, the Coast Guard will work in coordination with the 
pilots to ensure vessel traffic can transit the area safely.
    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, or other dredge(s) that may be used in accordance 
with this rule and the Rules of the Road (33 CFR subchapter E). The 
Coast Guard will notify the maritime public about the safety zones 
through 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 
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,

[[Page 2525]]

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 two 
safety zones to protect waterway users that would prohibit entry within 
250 yards of dredging operations and will close only one side of the 
main navigation channel. Vessels can request permission to enter the 
channel. 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T05-1004, to read as follows.


Sec.  165.T05-1004  Safety Zones, Delaware River Dredging; 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.
    (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, at 
maximum, 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) Vessels desiring to anchor in safety zone two, Anchorage 7 off 
Marcus Hook Range, must be at least 650 feet in length overall.
    (4) 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 10, 
2023, through April 15, 2023, unless cancelled earlier by the Captain 
of the Port.

    Dated: January 10, 2023.
Jonathan D. Theel,
Captain, U.S. Coast Guard Captain of the Port, Delaware Bay.
[FR Doc. 2023-00665 Filed 1-13-23; 8:45 am]
BILLING CODE 9110-04-P