[Federal Register Volume 89, Number 28 (Friday, February 9, 2024)]
[Rules and Regulations]
[Pages 8994-8996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02704]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0128]
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 Captain of the Port (COTP) or his 
designated representatives.

DATES: This rule is effective without actual notice from February 9, 
2024 through April 30, 2024. For the purposes of enforcement, actual 
notice will be used from February 6, 2024, through February 9, 2024

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0128 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 about this rule, 
call or email Petty Officer Christopher Payne, Waterways Management 
Branch, U.S. Coast Guard Sector Delaware Bay; telephone (267) 515-7294, 
email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

COTP Captain of the Port
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 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 
February 6, 2024 to serve its purpose of ensuring the safety of the 
public from hazards associated with dredging operations.
    Under 5 U.S.C. 553(d)(3), the Coast Guard also 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, such as 
submerged and floating pipelines, booster pumps, head sections, and 
support vessels with a restricted ability to maneuver. 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, both of which will be in 
effect from February 6, 2024 through April 30, 2024. 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. (The location of the anchorage is 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 the associated 
dredge pipeline and booster pumps. The pipeline consists of a 
combination of floating hoses immediately behind the dredge and 
submerged pipeline leading to upland disposal areas. Booster pumps, 
located between the dredge

[[Page 8995]]

pump and the discharge point, allow the dredge pump to operate more 
efficiently. 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 dredge, which will be 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. 
The depth of Anchorage 7 provides an acceptable depth for large vessels 
to bunker and stage for facility arrival. 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, as amended by 
Executive Order 14094. 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

[[Page 8996]]

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.

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 documents mentioned in this preamble as being available in 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 zones described in 
paragraphs (a)(1) and (2) of this section.
    (c) Regulations. (1) Entry into or transiting within 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 in effect and subject to 
enforcement from February 6, 2024 through April 30, 2024. If the 
Captain of the Port determines that conditions no longer warrant 
enforcement of the rule, he will provide notice to that effect via 
Marine Safety Information Bulletin and Broadcast Notice to Mariners.

    Dated: February 6, 2024.
Kate F. Higgins-Bloom,
Captain, U.S. Coast Guard Captain of the Port, Delaware Bay.
[FR Doc. 2024-02704 Filed 2-8-24; 8:45 am]
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