[Federal Register Volume 82, Number 197 (Friday, October 13, 2017)]
[Rules and Regulations]
[Pages 47620-47623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21979]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0947]
RIN 1625-AA00


Safety Zone, Delaware River; Dredging

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones in 
portions of New Castle Range and Cherry Island Range on the Delaware 
River as well as the Christina River in order to facilitate the annual 
maintenance dredging of the Federal Navigation Channel. The safety 
zones will be established for the waters in the vicinity of the dredge, 
dredge equipment, and associated pipeline. This regulation is necessary 
to provide for the safety of life on navigable waters of the Delaware 
River and the Christina River in the vicinity of dredging activity and 
is intended to protect mariners from the hazards associated with pipe-
laying and dredging operations.

DATES: This rule is effective without actual notice from October 13, 
2017 through January 10, 2018. For the purposes of enforcement, actual 
notice will be used from October 6, 2017, through October 13, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0947 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 Petty Officer Edmund Ofalt, Waterways Management Branch, 
U.S. Coast Guard Sector Delaware Bay; telephone (215) 271-4814, email 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 47621]]

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
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 Sector Delaware Bay received the 
final details of the project on October 2, 2017 and dredging operations 
are scheduled to commence on October 6, 2017. It is impracticable and 
contrary to the public interest to publish an NPRM to provide a notice 
and opportunity for comment period because we must establish these 
safety zones by October 6, 2017, to ensure the safety of life on 
navigable waters in the vicinity of dredging activity and protect 
mariners from the hazards associated with pipe-laying and dredging 
operations. Specific risks to safety include submerged and floating 
pipeline, dredge booster assemblies and the dredge itself which may be 
placed within or in close proximity to the navigational channel and Pea 
Patch Island Anchorage 5 on the Delaware River.
    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 hazards presented to 
safety of life on the Delaware and Christina Rivers by the presence of 
dredge equipment and dredging operations.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port (COTP) Delaware Bay has determined that 
potential hazards associated with dredging and pipe laying operations 
beginning on October 6, 2017, will be a safety concern for vessels 
attempting to transit the Delaware River, along New Castle Range, 
Cherry Island Range, and the Christina River. This rule is needed to 
protect personnel, vessels, and the marine environment on the navigable 
waters within the safety zones while dredging is being conducted.

IV. Discussion of the Rule

    This rule establishes safety zones on portions of the Delaware 
River and Christina River from October 6, 2017, through January 10, 
2018, unless cancelled earlier by the COTP, to facilitate maintenance 
dredging being conducted in New Castle Range, Cherry Island Range and 
the Christina River. Maintenance dredging in the channel will be 
conducted with the cutter suction dredge ILLINOIS and associated 
pipeline. The pipeline will be a combination of floating hoses 
immediately behind the dredge connected to a submerged pipeline leading 
to upland disposal areas. Due to the hazards related to cutter suction 
dredging, the associated pipeline, and the location of the submerged 
pipeline, safety zones will be established in the following areas:
    (1) Safety zone 1 includes all waters within 150 yards of the 
dredge and all related dredge equipment. Entry into or transiting 
within safety zone 1 is prohibited unless vessels obtain permission 
from the Captain of the Port, via VHF-FM channel 16, or make 
satisfactory passing arrangements, via VHF-FM channels 07 or 13, with 
the dredge ILLINOIS per this section and the Rules of the Road (33 CFR 
subchapter E). The safety zone will be established for the duration of 
the maintenance project. Vessels requesting to transit shall contact 
the dredge ILLINOIS on VHF channel 07 or 13, at least 1 hour, as well 
as 30 minutes, prior to arrival.
    (2) Safety zone 2 includes all the waters of Pea Patch Island 
Anchorage No. 5 found in 33 CFR 110.157(a)(6), where submerged 
pipeline(s) will be located which poses a risk to anchored vessels. The 
safety zone will be in place only during the time in which the dredge 
ILLINOIS is conducting dredging operations in New Castle Range. Vessels 
requesting to anchor in Pea Patch Island Anchorage No. 5, during the 
enforcement of safety zone 2, are required to obtain permission from 
the COTP prior to entry into the anchorage.
    The COTP will terminate each safety zone individually once all 
submerged pipeline has been recovered and dredging operations are 
completed in each range respectively. Notice of the termination of each 
safety zone 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, and duration of the safety zones. 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. Furthermore, vessels may be permitted to transit through the 
safety zone with the permission of the COTP or make satisfactory 
passing arrangements with the dredge ILLINOIS in accordance with this 
rule and the Rules of the Road (33 CFR subchapter E). Extensive 
notification of the safety zones to the maritime public will be made 
via 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

[[Page 47622]]

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 (Public Law 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 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 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 safety zones that encompass all navigable waters within 
150 yards of a dredge, dredging pipeline and all dredge related 
equipment. It is categorically excluded from further review under 
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record 
of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

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.

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: 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 Sec.  165.T05-0947, to read as follows:


Sec.  165.T05-0947  Safety Zones, Delaware River; Dredging.

    (a) Location. The following areas are safety zones:
    (1) Safety zone 1. Safety zone 1 includes all navigable waters 
within 150 yards of the dredge ILLINOIS and all related dredge 
equipment.
    (2) Safety zone Safety zone 2 includes all the waters of Pea Patch 
Island Anchorage No. 5 found in 33 CFR 110.157(a)(6), where submerged 
pipeline will be located causing a hazard to anchoring vessels.
    (b) Definitions--(1) Captain of the Port means the Commander 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 with the enforcement of safety zones 
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 zones created by this 
section.
    (1) Entry into or transiting within safety zone 1 is prohibited 
unless vessels obtain permission from the Captain of the Port, via VHF-
FM channel 16, or make satisfactory passing arrangements, via VHF-FM 
channels 07 or 13, with the dredge ILLINOIS per this section and the 
Rules of the Road (33 CFR subchapter E). Vessels requesting to transit 
shall contact the dredge ILLINOIS on VHF-FM channel 07 or 13, at least 
1 hour, as well as 30 minutes, prior to arrival.
    (2) Entry into, transiting, or anchoring within safety zone 2 is 
prohibited unless vessels obtain permission from the Captain of the 
Port via VHF-FM channel 16.
    (3) Vessels granted permission to enter and transit through the 
safety zone(s) must do so in accordance with any directions or orders 
of the Captain of the Port, his designated representative, or the 
dredge ILLINOIS as appropriate. No person or vessel may enter or remain 
in a safety zone without permission from the Captain of the Port or the 
dredge ILLINOIS as applicable.
    (4) At least one side of the main navigational channel will be kept 
clear for safe passage of vessels in the vicinity

[[Page 47623]]

of safety zone 1. At no time will the main navigational channel be 
closed to vessel traffic.
    (5) This section applies to all vessels that intend to transit 
through either safety zone except vessels that are engaged in the 
following operations: enforcement of laws; service of aids to 
navigation, and emergency response.
    (d) Enforcement period. This section is enforced from October 6, 
2017, through January 10, 2018.
    (1) Zone 1. Zone 1 will be enforced at all times during which the 
dredge ILLINOIS is conducting dredging operations in New Castle Range, 
Cherry Island Range, and the Christina River.
    (2) Zone 2. Zone 2 will be enforced only during those times that 
dredge ILLINOIS is conducting dredging operations in New Castle Range.
    (3) Notifications. The Captain of the Port will notify the maritime 
community of specific times and locations during which these safety 
zones will be enforced by providing advance notice via marine safety 
information bulletins, broadcast notice to mariners and local notice to 
mariners.

    Dated: October 5, 2017.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2017-21979 Filed 10-12-17; 8:45 am]
 BILLING CODE 9110-04-P