[Federal Register Volume 83, Number 54 (Tuesday, March 20, 2018)]
[Rules and Regulations]
[Pages 12115-12117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05567]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0158]
RIN 1625-AA00


Safety Zone; Delaware River, Diving Operation, Marcus Hook, PA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone encompassing all 
navigable waters within a 250-yard radius of Commerce Construction 
vessels and machinery conducting survey and diving operations in the 
Delaware River, in the vicinity of Anchorage 7, near Marcus Hook, PA. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by survey and diving 
operations. Entry of vessels or persons into this zone is prohibited 
unless specifically authorized by the Captain of the Port Delaware Bay.

DATES: This rule is effective without actual notice from March 20, 
2018, through 6 p.m. on March 22, 2018. For the purposes of 
enforcement, actual notice will be used from 6 a.m. on March 15, 2018, 
through March 20, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0158 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 about this 
rulemaking, call or email Petty Officer Amanda Boone, Waterways 
Management Branch, U.S. Coast Guard Sector Delaware Bay; telephone 
(215) 271-4889, email [email protected].

SUPPLEMENTARY INFORMATION:

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

    On March 11, 2018, the Coast Guard was notified of survey and 
diving operations that will be taking place from March 15, 2018 through 
March 22, 2018, in Marcus Hook Anchorage No. 7, on the Delaware River. 
The COTP has determined that a safety zone is necessary to mitigate the 
hazards involving survey and diving operations. The safety zone covers 
all navigable waters within 250 yards of vessels and machinery being 
used by personnel to conduct survey and diving operations.
    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 notification of the survey and diving 
operations was not given to the Coast Guard until March 11, 2018. It is 
impracticable and contrary to the public interest to publish an NPRM 
because we must establish this safety zone by March 15, 2018 to protect 
persons involved with the survey and diving operations as well members 
of the public who may be near those 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 because immediate action is needed to 
address the potential safety hazards associated with survey and diving 
operations.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP has determined that potential hazards associated with 
survey and diving operations starting March 15, 2018, will be a safety 
concern for anyone within a 250-yard radius of diving and pipe removal 
vessels and machinery. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone while the operations are being conducted.

IV. Discussion of the Rule

    This rule establishes a safety zone from 6 a.m. Monday, March 15, 
2018, through 6 p.m. Friday, March 22, 2018. Notification of dates and 
times of safety zone enforcement will be sent to the maritime community 
via Broadcast Notice to Mariners and Marine Safety Information 
Bulletins. Marine Safety Information Bulletins may be obtained from 
https://homeport.uscg.mil/port-directory/delaware-bay or by calling the 
Coast Guard Delaware Bay Command Center at 215-271-4807. The safety 
zone will cover all navigable waters within 250 yards of survey and 
diving operation vessels, as well as any associated equipment, 
operating in Marcus Hook Anchorage No. 7 near Marcus Hook, PA, on the 
Delaware River. The work will be conducted in the southern most portion 
of the Anchorage on the eastern side adjacent to the New Jersey 
shoreline. During diving and removal operations, the safety zone will 
restrict vessels from

[[Page 12116]]

anchoring in the lower portion of Anchorage No. 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 size, location, 
duration, and time-of-day of the safety zone. The safety zone which 
will impact a small designated area of the Marcus Hook Anchorage No. 7, 
in the Delaware River, from 6 a.m. through 6 p.m., Monday through 
Friday, beginning March 15, 2018 through March 22, 2018. Vessel traffic 
will be able to safely transit the main navigational channel during 
that time. Moreover, the Coast Guard will issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16, Local Notice to Mariners, and 
Marine Safety Information Bulletin 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 anchor in 
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 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 
Directive 023-01 and Commandant Instruction M16475.1D, 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 250 yards of survey and 
diving operation vessels, as well as any associated equipment, 
operating in Marcus Hook Anchorage No. 7 near Marcus Hook, PA, on the 
Delaware River. It is categorically excluded from further review under 
paragraph L[60a] of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 01. 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:

[[Page 12117]]

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.T05-0158 to read as follows:


Sec.  165.T05-0158   Safety Zone, Delaware River; Diving Operations; 
Marcus Hook, PA.

    (a) Location. The following areas are safety zones: all navigable 
waters within 250 yards of survey and diving operation vessels, as well 
as any associated equipment, operating in Marcus Hook Anchorage No. 7 
near Marcus Hook, PA, on the Delaware River.
    (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 
subpart C of this part apply to the safety zone created by this 
section.
    (1) Entry into or transiting within the zone 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 13 or 80 with the on-scene 25 foot diving vessel.
    (2) No vessels may anchor in the lower portion of Marcus Hook 
Anchorage No. 7 for the duration of the enforcement period.
    (3) All vessels must operate at the minimum safe speed necessary to 
maintain steerage and reduce wake.
    (4) This section applies to all vessels except those engaged in law 
enforcement, aids to navigation servicing, and emergency response 
operations.
    (d) Enforcement periods. This section will be enforced from 6 a.m. 
through 6 p.m., Monday through Friday, beginning March 15, 2018, 
through March 22, 2018.

    Dated: March 14, 2018.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2018-05567 Filed 3-19-18; 8:45 am]
 BILLING CODE 9110-04-P


