[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)]
[Rules and Regulations]
[Pages 77573-77575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31488]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2015-0998]
RIN1625-AA00
Safety Zone, Delaware River; Marcus Hook, PA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
waters of the Delaware River in the vicinity of Marcus Hook,
Pennsylvania. The safety zone will temporarily restrict vessel traffic
from transiting or anchoring in a portion of the Delaware River while
rock blasting, dredging, and rock removal operations are being
conducted to facilitate the Delaware River Main Channel Deepening
project for the main navigational channel of the Delaware River. The
safety zone is needed to protect personnel, vessels, and the marine
environment from potential hazards created by rock blasting, dredging,
and rock removal operations. Entry of vessels or persons into this zone
is prohibited unless specifically authorized by the Captain of the
Port, Delaware Bay, or his designated representatives.
DATES: This rule is effective without actual notice from December 15,
2015 through March 15, 2016. For the purposes of enforcement, actual
notice will be used from December 4, 2015 through December 15, 2015.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2015-0998 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 Lieutenant Brennan Dougherty, Sector Delaware Bay, Chief
Waterways Management Division, U.S. Coast Guard; telephone (215) 271-
4850, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
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 doing so would be impractical
due to environmental restrictions which require all blasting operations
to be conducted between December 15, 2015 to March 15, 2016.
Furthermore, the final details of the rock blasting, dredging, and rock
removal operation were not received until October 28, 2015. Due to the
criticality of this phase of the Delaware River Main Channel Deepening
project, immediate action is needed to accommodate operations while
also ensuring vessels can safely transit through Marcus Hook Range in
Delaware River during this time. Going forward without establishing a
safety zone would expose mariners and the public to unnecessary dangers
associated with rock blasting, dredging, and rock removal operations.
For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard
finds that good cause exists for making this temporary rule effective
less than 30 days after publication in the Federal Register.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231; 33 CFR 1.05-1 and 160.5; and Department of Homeland Security
Delegation No. 0170.1. The Captain of the Port, Delaware Bay, has
determined that potential hazards associated with rock blasting,
dredging, and rock removal operations starting December 04, 2015 will
be a safety concern for anyone within 500 yards of rock blasting,
dredging, and rock removal operations. This rule is needed to protect
personnel, vessels, and the marine environment in the navigable waters
within the operational area.
IV. Discussion of the Rule
This rule establishes a safety zone from December 15, 2004 until
March 15, 2016. The safety zone will cover all navigable waters in the
Delaware River within 500 yards of vessels and machinery being used by
personnel to conduct rock blasting, dredging, and rock removal. The
duration of the zone is intended to protect personnel, vessels, and the
marine environment in these navigable waters while operations are being
conducted. Entry into, transiting, or anchoring within the safety zone
is prohibited unless authorized by the Captain of the Port, Delaware
Bay, or his designated representative. For the duration of the project,
in the vicinity of the rock blasting, rock removal, and dredging
operation, one side of the main navigational channel will be closed.
Vessels wishing to transit the safety zone in the main navigational
channel may do so if they can make satisfactory passing arrangements
with drill boat APACHE or the dredge TEXAS in accordance with the
Navigational Rules in 33 CFR Subchapter E via VHF-FM Channel 13 at
least 30 minutes prior to arrival. If vessels are unable to make
satisfactory passing arrangements with the drill boat APACHE or the
dredge TEXAS, they may request permission from the Captain of the Port,
or his designated representative, on VHF-FM channel 16. All vessels
must operate at the minimum safe speed necessary to maintain steerage
and reduce wake.
No vessels may transit through the safety zone during times of
explosives detonation. During rock blasting 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. Sector Delaware Bay
will ensure significant notice will be given to the maritime community
of dates and times of blasting via broadcast notice to mariners on VHF-
FM Channel 16. After every explosive detonation a survey will be
conducted 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 designated representative of the Captain
[[Page 77574]]
of the Port, and shall contact the drill boat APACHE and the dredge
TEXAS on VHF-FM channel 13 for safe passing information.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on a number of these statutes and E.O.s, and we discuss
First Amendment rights of protestors.
A. Regulatory Planning and Review
E.O.s 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.
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under E.O. 12866. Accordingly, it has not been
reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size,
location, duration, and traffic management of the safety zone. The
Coast Guard does not anticipate any significant economic impact because
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 detonation
evolutions are being conducted. 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.
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 anchor in or
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
contact 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 E.O. 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 E.O. 13132.
Also, this rule does not have tribal implications under E.O. 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 contact 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
Management Directive 023-01 and Commandant Instruction M16475.lD, 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 in force from December 04, 2015, to March
15, 2016 that prohibits entry within 500 yards of vessels and machinery
being used by personnel conducting rock blasting, dredging, and rock
removal operations in the Delaware River near Marcus Hook, PA between
the southern end of Marcus Hook Anchorage to the western end of Little
Tinicum Island, at the entrance to Darby Creek. It is categorically
excluded from further review under paragraph 34(g) of Figure 2-1 of the
Commandant Instruction. An environmental analysis checklist supporting
this determination and a Categorical Exclusion Determination are
available in the docket where indicated under ADDRESSES. We seek any
comments or information that may lead to the discovery of a significant
environmental impact from this rule.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact 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.
[[Page 77575]]
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 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: 33 U.S.C 1231; 50 U.S.C. 191; 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 temporary Sec. 165.T05-0998, to read as follows:
Sec. 165.T05-0998 Safety Zone, Delaware River; Marcus Hook, PA.
(a) Location. The following area is a safety zone: all the waters
of the Delaware River within 500 yards of the dredge performing rock
blasting, rock removal, and dredging operations, in the vicinity of
Marcus Hook, PA between the southern end of Marcus Hook Anchorage to
the western end of Little Tinicum Island, at the entrance to Darby
Creek.
(b) Definitions. (1) The Captain of the Port means the Commander of
Sector Delaware Bay or any Coast Guard commissioned, warrant, or petty
officer who has been authorized by the Captain of the Port to act on
his behalf.
(2) Designated representative means any Coast Guard commissioned,
warrant or petty officer who has been authorized by the Captain of the
Port, Delaware Bay, to assist in enforcing the safety zone described in
paragraph (a) of this section.
(c) Regulations. The general safety zone regulations found in 33
CFR part 165 subpart C apply to the safety zone created by this
section.
(1) All persons and vessels are prohibited from entering this zone,
except as authorized by the Captain of the Port, or his designated
representative.
(2) Vessels wishing to transit the safety zone in the main
navigational channel may do so if they can make satisfactory passing
arrangements with the drill boat APACHE or the dredge TEXAS in
accordance with the Navigational Rules in 33 CFR Subchapter E via VHF-
FM Channel 13 at least 30 minutes prior to arrival. If vessels are
unable to make satisfactory passing arrangements with the drill boat
APACHE or the dredge TEXAS, they may request permission from the
Captain of the Port, or his designated representative, on VHF-FM
channel 16.
(3) The operator of any vessel requesting to transit through the
safety zone shall proceed as directed by 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 the safety zone during times of
explosives detonation. During rock blasting 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.
(5) After every explosive detonation a survey will be conducted 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 designated representative of the Captain of the Port
and contact the drill boat APACHE on VHF-FM channel 13 to make safe
passing arrangements.
(6) This section applies to all vessels wishing to transit through
the safety zone except vessels that are engaged in the following
operations:
(i) Enforcing laws;
(ii) Servicing aids to navigation; and
(iii) Emergency response vessels.
(7) No person or vessel may enter or remain in a safety zone
without the permission of the Captain of the Port;
(8) Each person and vessel in a safety zone shall obey any
direction or order of the Captain of the Port;
(9) No person may board, or take or place any article or thing on
board, any vessel in a safety zone without the permission of the
Captain of the Port; and
(10) No person may take or place any article or thing upon any
waterfront facility in a safety zone without the permission of the
Captain of the Port.
(d) Enforcement officials. 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 December
04, 2015, to March 15, 2016, unless cancelled earlier by the Captain of
the Port.
Dated: December 9, 2015.
Benjamin A. Cooper
Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2015-31488 Filed 12-14-15; 8:45 am]
BILLING CODE 9110-04-P