
[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 2736-2738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01602]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0031]
RIN 1625-AA00


Safety Zone; Delaware River Rock Blasting, 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 between Marcus Hook Range and Tinicum 
Range. The safety zone will temporarily restrict vessel traffic from 
transiting or anchoring in portions of the Delaware River while rock 
blasting, dredging, and rock removal operations are being conducted to 
facilitate the Main Channel Deepening project for the Delaware River. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from 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 COTP or his designated 
representatives.

DATES: This rule is effective from February 10, 2019, through March 15, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0031 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 Edmund Ofalt, U.S. Coast Guard 
Sector Delaware Bay, Waterways Management Branch; telephone (215) 271-
4889, email Edmund.J.Ofalt@uscg.mil.

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 blasting 
operations. The rule must be in force by February 10, 2019, to serve 
its purpose of ensuring the safety of personnel, vessels, and the 
marine environment from hazards associated with rock blasting, 
dredging, and rock removal 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 and contrary to the public interest 
because immediate action is needed to mitigate the potential safety 
hazards associated with rock blasting, dredging and rock removal 
operations in this location.

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 there are potential hazards 
associated with the rock blasting and dredging operations. This rule is 
needed to ensure the safety of personnel, vessels, and the marine 
environment within a 500-yard radius of rock blasting, dredging, and 
rock removal operations

IV. Discussion of the Rule

    This rule establishes a safety zone from February 10, 2019, through 
March 15, 2019. The safety zone covers all navigable waters in the 
Delaware River within 500 yards of vessels and machinery being used to 
conduct rock blasting, dredging, and rock removal operations between 
Marcus Hook Range and Tinicum Range. 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 detonations are being conducted and shortly 
thereafter, when the channel is being surveyed to ensure the 
navigational channel is clear for vessels to transit. These 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. This rule describes communications for notifying 
waterway users of upcoming detonations and provides means for waterway 
users to request entry into the safety zone.

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

[[Page 2737]]

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, duration, and traffic management of the safety zone. 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 detonations 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 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 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 to protect waterway users that would prohibit entry 
within 500 yards of rock blasting, dredging, and rock removal. 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. 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 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.T05-0031 to read as follows:

[[Page 2738]]

Sec.  165.T05-0031   Safety Zone, Delaware River Rock Blasting; Marcus 
Hook, PA.

    (a) Location. The following area is a safety zone: All the 
navigable waters of the Delaware River within 500 yards of vessels and 
machinery performing rock blasting, rock removal, and dredging 
operations, between Marcus Hook Range and Tinicum Range.
    (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) 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 dredges TEXAS 
and NEW YORK, as applicable, 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 dredges TEXAS and NEW 
YORK, they may request permission from the Captain of the Port, or his 
designated representative, on VHF-FM channel 16.
    (2) The operator of any vessel requesting to transit through the 
safety zone shall proceed as directed by the drill boat APACHE, the 
dredges TEXAS and NEW YORK, or the designated representative of the 
Captain of the Port and must operate at the minimum safe speed 
necessary to maintain steerage and reduce wake.
    (3) No vessel may transit through the safety zone during times of 
explosive detonation. During explosive detonation, vessels must 
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.
    (4) After every explosive detonation the dredging contractor will 
conduct a survey 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 Captain of the Port and contact 
the drill boat APACHE on VHF-FM channel 13 to make safe passing 
arrangements.
    (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 February 
10, 2019, through March 15, 2019, unless cancelled earlier by the 
Captain of the Port.

    Dated: February 4, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2019-01602 Filed 2-7-19; 8:45 am]
 BILLING CODE 9110-04-P


