2024-01548. Safety Zone; Atlantic Ocean, Virginia Beach, Virginia

AGENCY:

Coast Guard, Department of Homeland Security (DHS).

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for navigable waters within a 1,000-yard radius of the M/V HOS WARLAND, HOS INNOVATOR, and, or HOS MYSTIQUE. Operations are planned to relocate unexploded ordinance (UXO) in the Atlantic Ocean, within 12 miles of the shores of the State Military Reservation, in Virginia Beach, Virginia. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by these operations. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Sector Virgina or a designated representative.

DATES:

This rule is effective and subject to enforcement without actual notice from January 26, 2024 through July 1, 2024. For the purposes of enforcement, actual notice will be used from February 1, 2024, until January 26, 2024.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG–2024–0081in the search box and click “Search.” Next, in the Document Type column, select “Supporting & Related Material.”

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rule, call or email LCDR Ashley Holm, Chief, Waterways Management Division U.S. Coast Guard; 757–617–7986, [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

pUXO Potential Unexploded Ordinance

ROV Remotely Operated Vehicle

§ Section

TFR Temporary Final Rule

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 in 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) because Coast Guard Sector Virginia was first notified on January 9th, 2024, that operations using a Remotely Operated Vehicle (ROV) to shift UXOs would begin in early February, 2024. There is insufficient time to publish an NPRM, consider any comments submitted in response thereto, and publish the final safety zone by February 1, 2024, when the public will need to have notice of it.

In addition, 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 the operations utilizing ROVs to relocate UXO.

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 Sector Virginia (COTP) has determined that potential hazards associated with the UXO operations starting on or about February 1, 2024, and continuing into July 2024, will be a safety concern for any persons or property within the operating area discussed below. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone from potential hazards that arise from disturbing UXOs and the use of tethered ROVs for relocation.

IV. Discussion of the Rule

This rule establishes a safety zone on February 1, 2024, through July 1, 2024. The safety zone encompasses all waters within a 1,000-yard radius from the M/V HOS WARLAND, HOS INNOVATOR, and, or HOS MYSTIQUE when operating within the territorial seas offshore from Virginia State Military Reservation. The safety zone will only be enforced during active UXO relocation operations inside those boundaries. To communicate active disposition activities, project vessels will broadcast “Securitae” calls prior to and periodically during the operations. A tethered ROV will be used in conjunction with two small craft and Dynamic Positioning Vessels (DPV) operating within the safety zone. The zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during disposition activities. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or 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. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and operations requirements of the survey requiring the safety zone. Vessel traffic will be able to safely transit around this safety zone during the operations. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF–FM marine channel 16 when the zone is being enforced.

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.

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, Rev. 1, associated implementing instructions, 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 that prohibits entry within a prescribed zone only during the active survey operations which will take place between February and July 2024. 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. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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 in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping
• Security measures, and 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: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 165.T05–0081 to read as follows:

§ 165.T05–0081

Safety Zone; Atlantic Ocean, Virginia Beach, VA.

(a) Location. The following area is a safety zone: All waters of the Atlantic Ocean, from surface to bottom, encompassed by a radius of 1,000 yards from the actual position of the M/V HOS WARLAND, HOS INNOVATOR, and, or HOS MYSTIQUE while relocation operations are being conducted within the boundaries of a perimeter defined by the following points: 36°49′4.8″ N 75°57′43.2″ W; 36°49′13.9″ N 75°42′39.8″ W; 36°47′11.7″ N, 75°41′50.8″ W and 36°48′28.8″ N 75°57′43.2″ W.

(b) Definitions. As used in this section, designated representative means 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 Sector Virginia (COTP) in the enforcement of the safety zones. The term also includes the M/V HOS WARLAND, HOS INNOVATOR and HOS MYSTIQUE for the sole purpose of designating and establishing safe transit corridors, to permit passage into or through these safety zones, or to notify vessels and individuals that they have entered a safety zone and are required to depart immediately.

(c) Regulations.

(1) Under the general safety zone regulations in subpart C of this part, vessels may not enter 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, vessels should contact the M/V HOS WARLAND, HOS INNOVATOR, and, or HOS MYSTIQUE by VHF–FM Channel 16. Those in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative.

(d) Enforcement period. This zone will be in effect from February 1, 2024, through July 1, 2024 and enforced during such times as are announced via Broadcast Notice to Mariners between.

Dated: January 22, 2024.

J.A. Stockwell,

Captain, U.S. Coast Guard, Captain of the Port Sector Virginia.