2011-4973. Safety Zone, Dredging Operations; Delaware River, Marcus Hook, PA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone on the waters of the Delaware River while the Dredge Pullen conducts dredging operations at the Sunoco Marcus Hook docks in the vicinity of the Marcus Hook Range near Marcus Hook, PA. This action is necessary to maintain the 42 ft. berth draft in this portion of the Delaware River. The dredging action will facilitate commerce and safe navigation within the Port of Philadelphia, PA.

DATES:

This rule is effective from 8 a.m. on March 3, 2011 through 10 p.m. on March 14, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0127 and are available online by going to http://www.regulations.gov,, inserting USCG-2011-0127 in the “Keyword” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call or e-mail Lieutenant Corrina Ott Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

The Coast Guard is issuing this temporary final 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 delaying the effective date is contrary to the public interest because the transport of fuel oils is currently hindered by the reduction in vessel draft for that area. In addition, the dredging operations are necessary for the facilitation of safe navigation within the Delaware River.

For the same reasons, 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.

Basis and Purpose

The dredging described above is necessary for the continuation of safe navigation of deep draft vessels on this part of the Delaware River. This safety zone is necessary to protect mariners and members of the public from the hazards associated with dredging.

Background

On March 3, the Dredge Pullen will begin dredging in the vicinity of Sunoco Marcus Hook for maintenance of the facility berth. Current berth draft does not allow for deep draft vessels to safely deliver and transport cargo through the regulated portion of the Delaware River. Dredging will maintain and ensure a depth of 42 ft. through this portion of the Delaware River. This safety zone will allow dredging operations to ensure the 42 ft. draft of this portion of the Delaware River. Such operations will facilitate the movement of commerce by allowing the dredging to maintain the berth's 42 foot depth, allowing for deep draft vessels to safely deliver and transport cargo through the Port of Philadelphia.

Discussion of Rule

The Coast Guard Captain of the Port Delaware Bay is establishing a temporary safety zone from 8 a.m. on March 3, 2011 to 10 p.m. on March 14, 2011. The boundary line for the temporary safety zone starts at position 39 48′44.51″ N, 75 24′38.76″ W then East to position 39 48′29.33″ N, 75 24′27.88″ W, then South to 39 48′16.74″ N, 75 24′54.20″ W, then West to the shoreline in the vicinity of Sunoco Marcus Hook, in Marcus Hook, PA. Vessels will be allowed to transit adjacent to the safety zone through Anchorage #7; additionally, vessels wishing to anchor in Anchorage #7 will be allowed to do so in the upper end on a first come, first served basis for an anchorage period not to exceed 24 hours. Vessels should contact Sector Delaware Bay at 215-271-4807 to make advanced arrangements for such anchorage at Anchorage #7.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation will prevent traffic from transiting a portion of the Delaware River during the dredging operations, the effect of this regulation will not be significant due to the limited effective period of approximately 12 days. Advanced maritime advisories will be issued by the Coast Guard for users of the Delaware River. The regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. And, vessel traffic will be able to transit safety through the Delaware River, through the lower end of Anchorage #7, adjacent to the regulated area.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Delaware River from March 3, 2011 to March 14, 2011. Although this regulation prevents traffic from transiting a portion of the Delaware River, this rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be diverted through the lower end of Anchorage #7 to allow vessel traffic to transit safely around the affected area of the Delaware River thereby ensuring continued traffic on the Delaware River; additionally, vessels traffic will be allowed to anchor at the upper end of Anchorage #7. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM Channel 16 (156.8 MHz) and at 215-271-4807. Before the effective period, we will issue maritime advisories widely available to users of the river.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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.

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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 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.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

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.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves implementation of regulations within 33 CFR part 165, applicable to safety zones on the navigable waterways. This zone will allow for maintenance dredging and debris disposal where no new depths are required, applicable permits have been secured, and disposal will be at an existing approved disposal site. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add temporary § 165.T05-0127, to read as follows

§ 165.T05-0127

Safety Zone; Delaware River, Marcus Hook, PA

(a) Location. The boundary line for the temporary safety zone starts at position 39 48′44.51″ N, 75 24′38.76″ W then East to position 39 48′29.33″ N, 75 24′27.88″ W, then South to 39 48′16.74″ N, 75 24′54.20″ W, then West to the shoreline in the vicinity of Sunoco Marcus Hook, in Marcus Hook, PA. All coordinates reference Datum, NAD 1983.

(b) Effective period. This rule is effective from 8 a.m. on March 3, 2011 through 10 p.m. on March 14, 2011.

(c) Regulations. All persons are required to comply with the general regulations governing safety zones in 33 CFR 165.23 of this part.

(1) No person may enter a safety zone unless authorized by the COTP or the District Commander,

(2) No person may bring or cause to be brought into a safety zone any vehicle, vessel, or object unless authorized by the COTP or District Commander,

(3) No person may remain in a safety zone or allow any vehicle, vessel, or object to remain in a safety zone unless authorized by the COTP or the District Commander,

(4) Each person in a safety zone who has notice of a lawful order or direction shall obey the order or direction of the COTP or District Commander issued to carry out the purposes of this subpart.

(d) Definitions. The Captain of the Port means the Commanding Officer of 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 her behalf.

Dated: February 28, 2011.

Meredith L. Austin,

Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.