[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Rules and Regulations]
[Pages 49022-49025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20102]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0784]
RIN 1625-AA00


Safety Zone, Delaware River, Philadelphia, 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 
navigable waters of the Delaware River to restrict and protect vessel 
traffic during the offloading of two Post-Panamax gantry cranes at the 
Port of Philadelphia. This action is intended to protect mariners and 
vessels from the hazards associated with these offloading activities. 
Entry of vessels or persons into this zone is prohibited unless a 
vessel meets the stated requirements or is specifically authorized by 
the Captain of the Port Delaware Bay. This rule compliments a safety 
zone found in docket number USCG-2019-0782 addressing navigation risks 
while the vessel carrying the cranes is anchored or underway in 
Delaware Bay and River.

[[Page 49023]]


DATES: This rule is effective without actual notice from September 18, 
2019 through October 15, 2019. For the purposes of enforcement, actual 
notice will be used from September 14, 2019 through September 18, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0782 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 
proposed 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 M/V ZHEN HUA 26 is transporting post-Panamax gantry cranes to 
ports within the United States. These large cranes extend beyond the 
width of M/V ZHEN HUA 26 on both sides of the vessel and create a 
navigational hazard to vessels operating within a certain proximity. 
The cranes are fastened in a manner which facilitates passage through 
the open ocean. Upon arrival to the Delaware River, M/V ZHEN HUA 26 
will transit to anchorage and begin an approximately four day process 
of removing the sea fastenings. The M/V ZHEN HUA 26 will then proceed, 
conditions permitting, to berth at the Port of Philadelphia Greenwich 
Terminal where it will offload the cranes. Because offloading the 
cranes requires precise environmental conditions which passing traffic 
could disrupt, and with the consequences of failure being catastrophic 
to those in proximity to the operation, the facility, and the waterway, 
we are establishing a safety zone around the vessel while it is 
preparing for and conducting the operation to offload the cranes.
    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 anticipated arrival of M/V ZHEN 
HUA 26 to the Delaware Bay Captain of the Port zone. The rule must be 
in force by September 14, 2019, to serve its purpose of ensuring the 
safety of waterway users and the general public from hazards associated 
with the offloading of post-Panamax gantry cranes with the Delaware Bay 
Captain of the Port Zone.
    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 the offloading of the post-Panamax gantry 
cranes.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The COTP has determined that there 
are potential hazards associated with the offloading of the post-
Panamax gantry cranes. These potential hazards will be a safety concern 
for anyone transiting navigable waters of the Delaware River bounded to 
the south by a line drawn from the southeast corner of Pier 124S at 
39[deg]53'41'' N, 075[deg]08'19'' W, thence east-southeast to the New 
Jersey Shoreline at 39[deg]53'34'' N, 075[deg]07'49'' W, and bounded to 
the north by the southernmost edge of the Walt Whitman Bridge.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone on all waters of the 
Delaware River bounded to the south by a line drawn from the southeast 
corner of Pier 124S at 39[deg]53'41'' N, 075[deg]08'19'' W, thence 
east-southeast to the New Jersey Shoreline at 39[deg]53'34'' N, 
075[deg]07'49'' W, and bounded to the north by the southernmost edge of 
the Walt Whitman Bridge. This safety zone is needed to protect 
personnel and vessels, in the navigable waters within the safety zone 
as well as persons on the adjacent shoreline during offloading of two 
Post-Panamax gantry cranes. This safety zone will be enforced for 
approximately seven days beginning from the time the M/V ZHEN HUA 26 
arrives at berth at Greenwich Terminal until the vessel departs from 
the terminal, unless cancelled earlier by the COTP Delaware Bay. 
Enforcement of the safety zone will be announced via broadcast notice 
to mariners.
    Vessels will be able to transit through the safety zone without 
permission from the COTP Delaware Bay if they meet the following 
requirements: (1) Transit through the safety zone at the minimum safe 
speed to reduce wake and maintain steerage, (2) except for towing 
vessels designated as assist tugs and operating in such capacity, do 
not overtake, meet, or otherwise pass any other unmoored or unanchored 
vessel while transiting through the safety zone, and (3) regardless of 
travel direction, vessels shall remain east of the centerline of the 
main navigation channel. The centerline is depicted on U. S. Electronic 
Navigational Chart US5PA12M and is a line drawn approximately from 
39[deg]53'39'' N, 075[deg]08'11'' W, thence north-northeast to 
approximate position 39[deg]54'20'' N, 075[deg]07'54'' W. Vessels which 
do not meet all of the requirements listed above will be prohibited 
from entering or transiting the safety zone without prior approval of 
the COTP Delaware Bay. Vessels requesting to enter or transit the 
safety zone may contact the Sector Delaware Bay Command Center 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.

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

[[Page 49024]]

from the requirements of Executive Order 13771.
    This regulatory action determination is based on the short duration 
and traffic management of the safety zone. This rule will allow for 
vessels to transit through the safety zone while the M/V ZHEN HUA 26 
moored at Greenwich Terminal in Port of Philadelphia, Pennsylvania if 
certain requirements are met, and the Coast Guard anticipates that most 
vessels will be able to freely transit around the safety zone and will 
not need to seek permission to enter the zone. For these reasons, the 
impact on waterway traffic is expected to be minimal.

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 
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 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 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 a safety zone to be enforced only during 
the offload of a vessel carrying post-Panamax gantry cranes. 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 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.T05-0784, to read as follows:


Sec.  165.T05-0784  Safety Zone, Delaware River, Philadelphia, PA

    (a) Location. The following area is a safety zone: All navigable 
waters bounded to the south by a line drawn from the southeast corner 
of Pier 124S at 39[deg]53'41'' N, 075[deg]08'19'' W, thence east-
southeast to the New Jersey shoreline at 39[deg]53'34'' N, 
075[deg]07'49'' W, and bounded to the north by the southernmost edge of 
the Walt Whitman Bridge. These coordinates are based on the 1984 World 
Geodetic System (WGS 84).
    (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.

[[Page 49025]]

    (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, unless 
moored or anchored outside the main navigational channel, 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 transit the safety zone described in paragraph (a) 
of this section if all of the following criteria are met:
    (i) Vessel shall maintain the minimum safe speed to reduce wake and 
maintain steerage.
    (ii) Except towing vessels designated as assist tugs and operating 
in such capacity, no vessel may meet, overtake or otherwise pass 
another unmoored or unanchored vessel within the safety zone.
    (iii) Regardless of travel direction, vessels shall remain east of 
the centerline of the main navigation channel. The centerline is 
depicted on U. S. Electronic Navigational Chart US5PA12M and is a line 
drawn approximately from 39[deg]53'39'' N, 075[deg]08'11'' W, thence 
north-northeast to approximate position 39[deg]54'20'' N, 
075[deg]07'54'' W.
    (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 
when the M/V ZHEN HUA 26 arrives at berth at the Greenwich Terminal in 
the Port of Philadelphia, Pennsylvania and end at midnight on October 
15, 2019.

    Dated: September 11, 2019.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2019-20102 Filed 9-17-19; 8:45 am]
 BILLING CODE 9110-04-P


