2024-21774. Safety Zone; M/V DALI Transit of the Elizabeth River, Norfolk Harbor, Thimble Shoal Channel and Chesapeake Bay, Norfolk, VA

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Department of Homeland Security

Coast Guard

1. 33 CFR Part 165
2. [Docket Number USCG-2024-0871]
3. RIN 1625-AA00

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for a portion of the Elizabeth River, Norfolk Harbor, Thimble Shoal Channel, and the Chesapeake Bay in Norfolk, VA. This action is necessary to protect personnel, vessels, and the marine environment from potential hazards created by the M/V Dali as it departs Norfolk, Va. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port, Sector Virginia.

DATES:

This rule is effective from September 24, 2024, through September 24, 2024. For the purposes of enforcement, actual notice will be used from September 19, 2024, until September 24, 2024.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2024-0871 in 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 Justin Strassfield, Sector Virginia, Waterways Management Division, U.S. Coast Guard, Telephone: [phone], email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

On March 26, 2024, the M/V Dali lost propulsion and allied with the Francis Scott Key Bridge in the Chesapeake Bay, near the Port of Baltimore, causing the bridge to collapse upon it. See 89 FR 24385 (April 8, 2024) for additional details about the allision. On June 22, 2024, the M/V Dali transited from the Port of Baltimore to Norfolk, Va. for repairs. More recently, the Port of Virginia has notified the Coast Guard that the M/V Dali will depart Virginia. The vessel transit is taking place with the assistance of multiple tugboats and will be subject to a safety zone issued by the Captain of the Port (COTP). It is anticipated that the vessel will depart between September 19, 2024, and September 24, 2024, but these dates are subject to change. Given both the damage to the vessel from the allision, and the vessel's mechanical history, including the loss of propulsion which led to the allision, a 500-yard safety zone will be enforced during the transit within Virginia waters.

The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory 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.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to public interest. There is insufficient time to provide notice of a proposed rule, take and consider comments, and publish a final rule before September 19, when the rule must be in effect to provide for safety in the navigable waters around the M/V Dali as it departs Norfolk, Virginia.

Also, 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 prompt action is needed to respond to the dangers associated with the transit of the M/V Dali. ( print page 77781)

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP, Sector Virginia has determined that potential hazards associated with the transit of the M/V Dali will be a safety concern for anyone within a 500-yard radius of the vessel due to its limited ability to maneuver. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the M/V Dali transits through the waters of the COTP Zone, Sector Virginia.

IV. Discussion of the Rule

This rule establishes a safety zone from September 19, 2024, to September 24, 2024. The safety zone will cover all navigable waters within 500 yards of the M/V Dali while in transit within waters of the COTP Zone, Sector Virginia. The dates of the safety zone were chosen to protect personnel, vessels, and the marine environment in the navigable waters of the Sector Virginia, COTP Zone before, during, and after the scheduled transit. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a 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 time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone while the vessel departs Norfolk, VA. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

B. Impact on Small Entities

Because the Coast Guard has determined that this final rule is exempt from notice and comment rulemaking requirements, the regulatory flexibility analysis provisions of the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply to this action.

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 500-yard moving safety zone around a vessel. It is categorically excluded from further review under paragraph L60(c) of appendix A, table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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 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: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; ( print page 77782) Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 165.T05-0871 to read as follows:

§ 165.T05-0871

Safety Zone; M/V DALI transit of the Elizabeth River, Norfolk Harbor, Thimble Shoal Channel and Chesapeake Bay, Norfolk, VA

(a) Location. The following area is a safety zone: All waters of the Elizabeth River, Norfolk Harbor, Thimble Shoal Channel, and Chesapeake Bay within 500 yards of the M/V Dali while it is transiting within Virginia waters.

(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 Virginia (COTP) in the enforcement of the safety zone.

(c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you 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, contact the COTP or the COTP's representative by 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.

(d) Enforcement officials. 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. This section will be enforced during the outbound transit of the M/V Dali from the Port of Norfolk.

Dated: September 18, 2024.

P.M. Britton,

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