[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42809-42812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17709]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0238]
RIN 1625-AA00


Safety Zone; Delaware River; Baker Range, DE and NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing two temporary moving safety 
zones in the Baker Range portion of the Delaware River. This action is 
necessary to provide for the safety of life and navigation on this 
portion of the Delaware River during submarine power cable laying 
operations. This regulation prohibits persons and vessels from entering 
or transiting through the safety zone without prior authorization from 
the Captain of the Port Delaware Bay or a designated representative.

DATES: This rule is effective from August 19, 2019 through December 31, 
2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0238 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, U.S. Coast Guard, Sector 
Delaware Bay, Waterways Management Division; telephone (215) 271-4814, 
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

    On October 2, 2018, the Harlan Electric Company notified the Coast 
Guard of construction activities in the Delaware River involving 
submerged cable laying operations. The submerged cable laying operation 
was originally scheduled to begin on July 1, 2019, and continue through 
September 20, 2019. In response to the notification, on May 3, 2019, 
the Coast Guard published a notice of proposed rulemaking (NPRM) that 
proposed a moving safety zone around the cable laying operations in the 
Baker Range portion of the Delaware River (84 FR 19003, May 3, 2019). 
There we stated why we issued the NPRM, and invited comments on our 
proposed regulatory action related to this cable laying project. During 
the comment period that ended June 3, 2019, we received one supportive 
comment.
    On July 29, 2019, Harlan Electric Company notified the Coast Guard 
of its updated intentions to conduct cable

[[Page 42810]]

laying operations, and debris removal as needed. Due to the nature of 
the equipment needed for anticipated debris removal, the Coast Guard is 
adding an additional safety zone to address the risks posed by debris 
removal operations in the navigable channel. Harlan Electric Company 
also informed the Coast Guard of a new construction start date.
    The Coast Guard is issuing this temporary rule with two safety 
zones and different effective dates 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 second notice of proposed rulemaking 
(NPRM) with respect to this rule because it is impracticable and 
contrary to the public interest to do so. There is insufficient time to 
allow for a reasonable comment period prior to the start of the 
construction activities in the Delaware River. The rule must be in 
force by August 19, 2019 when the cable laying project will commence. 
We are taking immediate action to ensure the safety of vessels and the 
general public from hazards associated with the submerged cable laying 
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 
respond to the potential safety hazards associated with submarine cable 
laying operations within the main navigational channel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Delaware Bay has determined that 
potential hazards associated with submarine cable laying operations 
will be a safety concern for anyone within 300 yards of the cable 
laying barge ULISSE and any associated equipment. The purpose of this 
rule is to ensure safety of vessels and the navigable waters in the 
safety zone during cable laying and debris removal operations that will 
take place in and around the main navigational channel in the Baker 
Range portion of the Delaware River.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM. The comment 
was supportive of the safety zone and did not suggest changes to the 
proposed rule. However, we made two changes to the regulatory text of 
this rule from the proposed rule in the NPRM because the party 
responsible for the construction provided us with new information 
regarding the cable laying project after the comment period closed.
    The first change is to the effective dates of the work. Due to 
unforeseen project delays, the start date for the portion of the 
project that will impact the navigational channel is now anticipated to 
be August 19, 2019. Subsequently, the end date for these operations is 
now anticipated to be on or about December 31, 2019. Due to the 
adjustments in start and end dates, the enforcement dates have been 
adjusted accordingly.
    The second change adds a safety zone to address potential dredge 
vessels that may need to move large obstructions from the river bottom 
to achieve the required depth for the cable. This second zone applies 
to all navigable waters within 300 yards of dredge equipment within and 
in the vicinity of the Baker Range portion of the Delaware River. 
Adding this second zone also required minor changes throughout the 
regulatory text to make wording and regulation structure consistent 
with multiple zones instead of just one zone.
    This rule establishes two safety zones from August 19, 2019, 
through December 31, 2019. Safety zone one encompasses all navigable 
waters within 300 yards of ULISSE and associated equipment during 
submarine cable laying operations. Safety zone two encompasses all 
navigable waters within 300 yards of dredging vessels and equipment 
within the Baker Range portion of the Delaware River.
    The duration of these safety zones is intended to ensure the safety 
of vessels and these navigable waters during submarine cable laying 
operations and debris removal within and in the vicinity of the Baker 
Range portion of the Delaware River. No vessel or person will be 
permitted to enter the safety zones without obtaining permission from 
the COTP or a designated representative. However, vessels may transit 
either safety zone without contacting the COTP or a designated 
representative if the vessel maintains the minimum safe speed to reduce 
wake and maintain steerage, if the vessel contacts ULISSE and arranges 
safe passage, and if the vessel can complete its transit through the 
zone when cable laying or debris removal operations are not occurring 
within the Baker Range Channel.

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, duration, and time-of-day of the safety zone. Vessel traffic 
will be able to safely transit around and through these safety zones 
which would impact a small designated area of the Delaware River for 
approximately four hours at a time for no more than four months. 
Working vessels will be in communication with inbound commercial 
traffic and ensure that the obstruction periods take place when the 
impact will be minimal. Moreover, the Coast Guard will issue a 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zones and the rule allows vessels to seek permission to enter the zones 
and even provides the opportunity for vessels to transit the zones 
without permission under certain conditions.

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 received no comments from the Small Business 
Administration on this rulemaking. The Coast Guard

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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 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 call or email the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

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 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 moving safety zones that will 
prohibit entry within 300 yards of the cable laying barge ULISSE and 
associated equipment as well as dredge vessels working within, and in 
the vicinity of, the Baker Range portion of the Delaware River. It is 
categorically excluded from further review under paragraph L60(a) in 
Table 3-1 of U.S. Coast Guard Environmental Planning Implementing 
Procedures. 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 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 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; 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.T05-0238 to read as follows:


Sec.  165.T05-0238  Safety Zone; Delaware River; Baker Range, PA.

    (a) Location. The following areas are safety zones:
    (1) Safety zone one includes all navigable waters within 300 yards 
of the barge ULISSE while it is exhibiting lights or shapes indicating 
it is restricted in its ability to maneuver per Sec.  83.27 of this 
chapter during submarine cable laying operations in and around Baker 
Range on the Delaware River.
    (2) Safety zone two includes all navigable waters within 300 yards 
of the dredge exhibiting lights or shapes indicating it is restricted 
in its ability to maneuver per Sec.  83.27 of this chapter while 
removing debris in support of ULISSE cable laying operations in and 
around Baker Range on the Delaware River.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Delaware Bay (COTP) in the enforcement of the 
safety zone.
    (c) Regulations. (1) In accordance with the general safety zone 
regulations in subpart C of this part and except for as described in 
paragraph (c)(3) of this section, vessels may not enter, remain in, or 
transit the safety zone described in paragraph (a) of this section 
unless authorized by the COTP or the COTP's designated representative.
    (2) To seek permission to enter or remain in the zone contact the 
COTP or the COTP's representative via VHF-FM Channel 16. Those in the 
safety zone must comply with all lawful orders or directions given to 
them by the COTP or the COTP's designated representative.
    (3) Vessels may, without prior authorization from the COTP or 
COTP's representative, transit safety zone one if they meet all of the 
following criteria

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and safety zone two if they meet the criteria in paragraphs (c)(3)(i) 
and (ii) of this section:
    (i) Vessel must contact the ULISSE and arrange for safe passage.
    (ii) Vessel shall maintain the minimum safe speed to reduce wake 
and maintain steerage.
    (iii) Vessel may begin, and must complete, its transit through 
safety zone one only when ULISSE is not conducting cable laying 
operations within Baker Range Channel. Cable laying operations within 
the channel will be announced via Broadcast Notice to Mariners, are 
expected to last approximately 4 hours at a time, and will be visually 
signaled by ULISSE displaying lights or shapes exhibiting restricted in 
ability to maneuver.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the safety zone by Federal, State, and local 
agencies.
    (e) Enforcement period. Enforcement of the safety zone will begin 
August 19, 2019, and continue through December 31, 2019.

    Dated: August 13, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2019-17709 Filed 8-16-19; 8:45 am]
BILLING CODE 9110-04-P


