Anchorage Grounds; Atlantic Ocean, Delaware
| Published date | 22 March 2022 |
| Citation | 87 FR 16126 |
| Record Number | 2022-05806 |
| Section | Proposed rules |
| Court | Coast Guard |
Federal Register, Volume 87 Issue 55 (Tuesday, March 22, 2022)
[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16126-16129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05806]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 110
[Docket Number USCG-2019-0822]
RIN 1625-AA01
Anchorage Grounds; Atlantic Ocean, Delaware
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard is proposing to amend the anchorage
regulations for the Delaware Bay and River, and adjacent waters, by
establishing two new, offshore deep-water anchorages. The purpose of
this proposed rule is to improve navigation safety by accommodating
recent and anticipated future growth in vessel size and volume of
vessel traffic entering the Delaware Bay and River, and to preserve
areas traditionally used or needed for anchoring. We invite your
comments on this proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before May 23, 2022.
ADDRESSES: You may submit comments identified by docket number USCG-
2019-0822 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email Marine Science Technician First
Class (MST1) Jennifer Padilla, Sector Delaware Bay, U.S. Coast Guard;
telephone (215) 271-4889, email [email protected]; or Mr.
Matt Creelman, Fifth Coast Guard District (dpw), U.S. Coast Guard;
telephone (757) 398-6230, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
ACPARS Atlantic Coast Port Access Route Study
AIS Automatic Identification System
BOEM Bureau of Ocean Energy Management
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NOI Notice of Intent
NPRM Notice of Proposed Rulemaking
OREA Offshore Renewable Energy Area
PARS Port Access Route Study
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
In 2011, the Coast Guard received requests to formally establish
anchorages in the Atlantic Ocean offshore from the Delaware coast in
response to the Atlantic Coast Port Access Route Study (ACPARS), a
multiyear study that included public participation and identified the
navigation routes customarily followed by ships engaged in commerce
between international and domestic U.S. ports. The ACPARS is available
at https://navcen.uscg.gov/?pageName=PARSReports. To preserve areas
traditionally used for anchoring from offshore development, the Federal
Pilots and the Mariners' Advisory Committee for the Bay and River
Delaware requested formal anchorage grounds be established to the east
and the west of the southeastern approach traffic separation scheme.
While these requests were noted in the ACPARS, the Coast Guard took no
action in the pursuing years, and the areas to the east and the west of
the southeastern approach traffic separation scheme continued to be
used as traditional and unregulated anchorage grounds.
On July 12, 2018, and August 21, 2018, the Coast Guard held
meetings with maritime stakeholders and waterway users to discuss the
impacts to vessel traffic and navigation safety on the Delaware Bay and
River due to the expansion of the Panama Canal and the planned
deepening of the Delaware River from 40 to 45 feet. Meeting attendees
included the Pilots' Association for the Bay and River Delaware, the
Mariners' Advisory Committee for the Bay and River Delaware, Interport
Pilots Association, and port and terminal representatives. The
attendees concluded the increased volume of vessel traffic and the size
of vessels calling on the Delaware Bay and River, and planned and
potential offshore development, heightened the need to formally
establish three new anchorage grounds: Two offshore in the Atlantic
Ocean and an additional inshore anchorage located in the Delaware Bay
near the Cape Henlopen breakwaters. The participants suggested the
anchorages would preserve areas traditionally used for anchoring and
provide for the ongoing and future growth of the marine transportation
system on the Delaware Bay and River.
On November 29, 2019, the Coast Guard published a Notice of Inquiry
(NOI) in the Federal Register (81 FR 25854) to formally seek feedback
on whether the Coast Guard should consider a proposed rulemaking to
establish the three new anchorages. Following the naming convention in
33 CFR 110.157, the anchorages were referred to as Anchorage B--
Breakwater, Anchorage C--Cape Henlopen, and Anchorage D--Indian River.
We received 42 comments in response to the NOI. Five comments were
supportive; twenty eight were opposed to the proposed inshore
anchorage, Anchorage B; and fourteen were opposed to the proposed
offshore anchorages, Anchorages C and D.
On May 5, 2020, the Coast Guard published a Notice of Study;
request for comments entitled ``Port Access Route Study (PARS) for the
Seacoast of New Jersey Including Offshore Approaches to the Delaware
Bay, Delaware'' in the Federal Register (85 FR 26695). The initial
comment period closed on July 5, 2020. The Coast Guard conducted two
virtual public meetings on October 28, 2020, and November 4, 2020, and
the initial comment period was re-opened through November 10, 2020. The
study included an in-depth analysis of historical anchoring patterns in
the approaches to the Delaware Bay and River. Anchorage related
comments received during the study are discussed in Section III, and a
full list of comments can be found in the Port Access Route Study
``PARS,'' docket number USCG-2020-0172.\1\
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\1\ The docket folder for USCG-2020-0172 is available at:
Regulations.gov.
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Based on feedback received to date, primary objections to the
proposed inshore anchorage are environmental in nature and concern
potential impacts on Atlantic Sturgeon, an endangered species under the
Endangered Species Act. Primary objections to the proposed offshore
anchorages concern potential conflicts between the siting of the
anchorage grounds and the need to route electricity transmission export
cables to the proposed or future offshore wind developments. Based on
the differences and nature of concerns between the anchorages located
inshore, in the Delaware River estuary, and the
[[Page 16127]]
anchorages located offshore in the Atlantic Ocean, the Coast Guard
intends to move forward with two separate rulemakings, one for the
inshore anchorage, and another for the offshore anchorages. With this
rulemaking, the Coast Guard proposes the establishment of the
anchorages located offshore in the Atlantic Ocean, Anchorage C--Cape
Henlopen, and Anchorage D--Indian River.
The purpose of this proposed rule is to improve navigation safety
by accommodating recent and anticipated future growth in cargo vessel
size and volume of vessel traffic entering the Delaware Bay and River,
and to preserve areas traditionally used or needed for anchoring. We
invite your comments on this proposed rulemaking.
The legal basis and authorities for this notice of proposed
rulemaking are found in 46 U.S.C. 70006, 33 CFR 1.05-1, DHS Delegation
No. 0170.1, which collectively authorize the Coast Guard to propose,
establish, and define regulatory anchorage grounds.
III. Discussion of Comments on NOI
This section provides a detailed discussion of the public comments
on the proposed Delaware Bay Anchorages received during the NOI comment
period and during the two virtual public meetings held for the New
Jersey PARS study. Also contributing to this rulemaking through the
PARS study process, the Coast Guard Navigation Center collected and
analyzed vessel historical Automatic Information System (AIS) track
line data from all vessels between 2017 and 2019 and created AIS ``heat
maps.'' These heat maps show a concentration of vessels and their
voyage routes and give insight into their operations and use of the
waterways and, most pertinent to this NPRM, the location of vessels
when at anchor. A copy of this AIS Anchorage report can be found in the
docket.\2\
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\2\ The docket folder for USCG-2019-0822 is available at:
Regulations.gov.
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On the NOI, the Coast Guard received a total of 19 comments
concerning proposed Anchorage C--Cape Henlopen and Anchorage D--Indian
River, five supportive and 14 opposed. Comments submitted to the online
docket aligned into four categories: Environmental concerns,
electricity transmission export cable routing safety and security, view
shed concerns, and supporters. Copies of the public comments received
are available for viewing in the public docket for this rulemaking
under docket number USCG-2019-0822. Commenters represented a wide range
of individuals and entities, including State and local government
officials, port authorities, representatives of affected industries,
such as maritime, port, and other facilities, and private citizens. The
comments received from these parties helped to inform the proposal in
this NPRM.
1. Environmental Concerns
We received eight comments opposing the anchorage locations due to
concerns that the presence of anchored ships could disrupt or pollute
marine life habitats and behaviors. The Coast Guard has prepared a
preliminary Record of Environmental Consideration (REC) for this NPRM,
which is available in the NPRMs docket folder, and has made a
preliminary determination that the proposed anchorages do not
cumulatively or individually have significant effect on the natural or
human environment.
We also note there are existing laws and regulations in place to
govern behavior of mariners and vessels related to concerns about the
release of pollutants. In terms of the discharge of pollutants, our
regulations in 33 CFR part 151 and the Act to Prevent Pollution from
Ships implement provisions of the International Convention for
Prevention of Pollution from Ships and subject violators to
penalties.\3\ In addition, the Ports and Waterways Safety Act (PWSA) of
1972 (33 U.S.C. 1221, 1223, 1228, 1232 et seq.) and PWSA-implementing
regulations help us ensure vessel compliance with all applicable
standards, operating requirements, conditions for entry into port, and
enforcement provisions.
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\3\ 33 U.S.C. 1901 et seq.
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The Coast Guard also notes that this rulemaking will not
significantly change the current and historical anchoring habits of
vessels in these areas. This is demonstrated in the AIS heat maps for
anchored vessels showing a concentration of vessels in or very near to
the proposed anchorage areas. The formal regulation of these anchorages
would not change the number of vessels that are anchoring and would
provide greater oversight and predictability to vessel navigation in
the area, which would ultimately lessen the potential for marine
accidents and environmental impacts.
2. Electricity Transmission Export Cable Routing and Safety Concerns
There were three comments submitted that pertained to concerns
regarding the new anchorages coexisting with potential undersea cable
routes to adjacent wind farm leases. Commenters requested mitigating
measures and further discussion with wind farm stakeholders to avoid
anchors striking or fouling undersea cables. Conversations between the
Coast Guard and offshore wind developers have continued, both during
and subsequent to the NOI and New Jersey PARS comment periods and
virtual meetings. These conversations, among other things, have
resulted in the developers choosing to pursue alternate cable routing
measures that will avoid the proposed anchorage grounds.
3. Tourism Concerns and View Shed Concerns
Four comments submitted were opposed to the new anchorages stating
that anchored vessels would obscure the ocean views from the coast and
reduce the tourism appeal of the local areas and harm the local
economies. In considering these comments, we note that the approval of
the proposed anchorages will not directly change the status quo for
vessels anchoring in these areas. AIS tracking data from 2017 to 2019
show vessels consistently anchoring in the same general area as the
proposed areas, and that anchoring would continue in these areas
regardless of the outcome of this rulemaking. By officially designating
these anchorages, the Coast Guard can formally regulate the vessels
that anchor in these offshore areas and limit vessels from anchoring
elsewhere in the future, further affecting the human environment and
local traffic.
4. Anchorage Proponents
There were five comments that stated the anchorages were necessary
to preserve areas traditionally used for anchoring from offshore wind
development and to provide adequate safe anchorage for vessels calling
on the growing ports of the Delaware Bay and River. These comments were
supported by AIS vessel data collected by the Coast Guard showing
consistent anchorage in the proposed areas between 2017-2019.
5. Comments Received During the PARS Meetings and Anchoring Data
Of the comments received during the New Jersey PARS virtual public
meetings, six pertained to the proposed anchorages. One commenter
specifically requested that this NPRM be available for at least 60 days
for public comment. The remaining comments supported the anchorage
proposal but stated concern for conflicts between vessel anchors and
electricity transmission export cables. Conversations between the Coast
Guard and offshore wind developers have continued, both during and
subsequent
[[Page 16128]]
to the NOI and New Jersey PARS comment periods and virtual meetings.
These conversations, among other things, have resulted in the
developers choosing to pursue alternate cable routing measures that
will avoid the proposed anchorage grounds.
IV. Discussion of Proposed Rule
The Coast Guard is proposing to establish new anchorage grounds
Anchorage C--Cape Henlopen and Anchorage D--Indian River. This proposal
reflects our consideration of comments received at public meetings and
in the docket, the preliminary Record of Environmental Consideration,
and data analysis collected during the New Jersey PARS study.
We believe this proposal will establish new deep-water anchorage
grounds for commercial vessels that will support the new and projected
growth in maritime commerce vessel traffic throughout the Delaware Bay
and River. These anchorages will create predictable navigation patterns
greatly improving safety of navigation at sea and limit the impact of
anchoring to the sea floor to specific determined areas.
Anchorage C--Cape Henlopen would be located in the Atlantic Ocean
approximately 9.4 miles east of the Delaware coast. The proposed
Anchorage C would be located in naturally deep water with charted
depths between 41 and 85 feet. The boundaries of Anchorage C--Cape
Henlopen are presented in Sec. 110.157(a)(19) of the proposed
regulatory text at the end of this document.
Anchorage D--Indian River would be located in the Atlantic Ocean
beginning approximately 6 miles east of the Delaware coast. The
proposed Anchorage D--Indian River will be located in naturally deep
water with charted depths between 40 and 85 feet. The proposed location
of Anchorage D has historically been used as an unregulated anchorage
by vessels entering and exiting the port. The boundaries of Anchorage
D--Indian River are presented in Sec. 110.157(a)(20) of the proposed
regulatory text at the end of this document.
V. Regulatory Analyses
We developed this proposed 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 NPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the NPRM 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 location and
size of the proposed anchorage grounds, as well as the vessel traffic
and anchoring data provided by the Coast Guard Navigation Center. The
regulation would ensure approximately 27 square miles of anchorage
grounds are designated to provide necessary commercial deep draft
anchorages and enhance the navigational safety of commercial vessels
transiting to, from, and within the Delaware Bay and River. The impacts
on routine navigation are expected to be minimal because the proposed
anchorage areas are located outside of the established traffic
separation zones and are consistent with current anchorage habits. When
not occupied, vessels would be able to maneuver in, around, and through
the anchorages.
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
proposed rule would not have a significant economic impact on a
substantial number of small entities.
The number of small entities impacted and the extent of the impact,
if any, is expected to be minimal. Proposed Anchorage C--Cape Henlopen
and Anchorage D--Indian River are located in an area of the Atlantic
Ocean which is not a popular or productive fishing location. Further,
the location is not in an area routinely transited by vessels heading
to, or returning from, known fishing grounds. Finally, the anchorage is
located in an area that is not currently used by small entities,
including small vessels, for anchoring due to the depth of water
naturally present in the area.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
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 proposed 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. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.
C. Collection of Information
This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed rule has implications for Federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
[[Page 16129]]
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 proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this proposed 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 made a preliminary
determination 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 proposed rule involves amending the regulations for
Delaware Bay and River anchorage grounds by establishing two new
anchorage regulations; Anchorage C --Cape Henlopen and Anchorage D--
Indian River. Normally such actions are categorically excluded from
further review under paragraph L59(a) of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of
Environmental Consideration supporting this determination is available
in the docket where indicated under ADDRESSES. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this proposed rule.
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.
VI. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
Submitting comments. We encourage you to submit comments through
the Federal Decision Making Portal at https://www.regulations.gov. To
do so, go to https://www.regulations.gov, type USCG-2019-0822 in the
search box and click ``Search.'' Next, look for this document in the
Search Results column, and click on it. Then click on the Comment
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER
INFORMATION CONTACT section of this proposed rule for alternate
instructions.
Viewing material in docket. To view documents mentioned in this
proposed rule as being available in the docket, find the docket as
described in the previous paragraph, and then select ``Supporting &
Related Material'' in the Document Type column. Public comments will
also be placed in our online docket and can be viewed by following
instructions on the https://www.regulations.gov Frequently Asked
Questions web page. We review all comments received, but we will only
post comments that address the topic of the proposed rule. We may
choose not to post off-topic, inappropriate, or duplicate comments that
we receive.
Personal information. We accept anonymous comments. Comments we
post to https://www.regulations.gov will include any personal
information you have provided. For more about privacy and submissions
to the docket in response to this document, see DHS's eRulemaking
System of Records notice (85 FR 14226, March 11, 2020).
List of Subjects in 33 CFR Part 110
Anchorage grounds.
For the reasons discussed in the preamble, the Coast Guard is
proposing to amend 33 CFR part 110 as follows:
PART 110--ANCHORAGE REGULATIONS
0
1. The authority citation for part 110 continues to read as follows:
Authority: 33 U.S.C. 471, 2071; 46 U.S.C. 70034; 33 CFR 1.05-1;
Department of Homeland Security Delegation No. 0170.1.
0
2. Amend Sec. 110.157 by adding paragraphs (a)(18) through (20) to
read as follows:
Sec. 110.157 Delaware Bay and River.
(a) * * *
(18) Reserved.
(19) Anchorage C--Cape Henlopen. The waters bounded by a line
connecting the following points:
------------------------------------------------------------------------
Latitude Longitude
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38[deg]40'54.00'' N 74[deg]52'00.00'' W
38[deg]40'56.08'' N 74[deg]48'51.34'' W
38[deg]37'36.00'' N 74[deg]48'30.00'' W
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(DATUM: NAD 83)
(20) Anchorage D--Indian River. The waters bounded by a line
connecting the following points:
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Latitude Longitude
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38[deg]34'56.25'' N 74[deg]52'19.12'' W
38[deg]33'40.91'' N 74[deg]54'41.50'' W
38[deg]31'31.08'' N 74[deg]55'27.96'' W
38[deg]29'07.35'' N 74[deg]53'29.25'' W
38[deg]28'56.87'' N 74[deg]50'28.69'' W
38[deg]30'07.37'' N 74[deg]48'08.38'' W
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(DATUM: NAD 83)
* * * * *
Dated: March 14, 2022.
L.M. Dickey,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2022-05806 Filed 3-21-22; 8:45 am]
BILLING CODE 9110-04-P
