2015-21685. Safety Zone; Unexploded Ordnance Removal, Vero Beach, FL

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a safety zone on the waters of the Atlantic Ocean for the removal of unexploded ordnance located east of Vero Beach. There will be a zone approximately 2.6 nautical mile wide along the beach extending due east for approximately 2.3 nautical miles, in Vero Beach, Florida. This safety zone will be in effect from August 10th through September 4, 2015. This safety zone will only be enforced while operations are being conducted. The safety zone is necessary to protect the public from hazards associated with removal of the unexploded ordnance. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone during operations unless authorized by the Captain of the Port Miami or a designated representative.

DATES:

This rule is effective without actual notice from September 1, 2015 until September 4, 2015. For the purposes of enforcement, actual notice will be used from August 10, 2015 until September 1, 2015.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, type USCG-2015-0737 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 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 rule, call or email Petty Officer Benjamin Colbert, U.S. Coast Guard; telephone [phone], email [e-mail]. If you have questions on viewing or submitting material to the docket, call Ms. Cheryl Collins, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

E.O. Executive order

FR Federal Register

NPRM Notice of proposed rulemaking

Pub. L. Public Law

§  Section

U.S.C. United States Code

II. Background Information and Regulatory History

The Coast Guard is issuing this 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 the Coast Guard did not receive notice of this event until late July and there is an immediate need to remove hazards presented by unexploded ordinance. Any delay in the effective date of this rule would be unnecessary and contrary to the public interest because immediate action is needed to minimize potential danger to the public from this operation.

We are issuing this final rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the same reasons described above.

III. Legal Authority and Need for Rule

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to provide for the safety of life on navigable waters during the removal and disposition of unexploded ordnance.

IV. Discussion of the Final Rule

From August 10, 2015 to September 4, 2015, the Army Corp of Engineers will be removing and disposing unexploded ordnance off the coast of Vero Beach, Florida.

A safety zone will encompass certain waters of the Atlantic Ocean in Vero Beach, Florida. The safety zone will be effective beginning 12:01 a.m. on August 10, 2015 through 11:59 p.m. on September 4, 2015 unless cancelled sooner by the Captain of the Port. The safety zone will be enforced while operations associated with the removal and disposition of the unexploded ordnance are ongoing. Weather conditions may inhibit ordinance removal operations; as a result, exact enforcement times cannot be identified at this time. The USCG and other Law Enforcement agencies will have vessels on-scene to enforce this rule. The safety zone will encompass all waters of the Atlantic Ocean from Windward Way to Seaway Court extending east for 2.3 nautical miles, in Vero Beach, Florida. All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within this regulated area.

Persons and vessels may request authorization to enter the safety zone by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the safety zone by Broadcast Notice to Mariners, and on-scene designated representatives.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

E.O.s 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

The economic impact of this rule is not significant for the following reasons: (1) This safety zone will be enforced during operations related to the removal and disposition of the unexploded ordnance; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding areas during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Broadcast Notice to Mariners and on-scene representatives.

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.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within the safety zone during the respective enforcement period. For the reasons discussed in the Regulatory Planning and Review Section above, this rule will not have a significant economic impact on a substantial number of small entities.

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 contact 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 E.O. 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 E.O. 13132.

Also, this rule does not have tribal implications under E.O. 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 contact 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 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 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 the creation of a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction.

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.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• 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: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add a temporary § 165.T07-0737 to read as follows:

§ 165.T07-0737

Safety Zone; Unexploded Ordnance Removal, Vero Beach, FL.

(a) Regulated area. The following regulated area is established as a safety zone: All waters starting at point 1 in position 27°37′00″ N. 80°20′40″ W.; thence east to point 2 in position 27°36′05″ N. 80°17′55″ W.; thence south to point 3 in position 27°34′51″ N. 80°17′55″ W.; thence west to point 4 in position 27°34′07″ N. 80°19′28″ W.; thence northwest back to origin.

(b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

(c) Regulations. (1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone without authorization from the Captain of the Port Miami or a designated representative.

(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within a safety zone is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.

(3) The Coast Guard will provide notice of the safety zone by Broadcast Notice to Mariners and on-scene designated representatives.

(d) Effective date. This rule is effective from 12:01 a.m. on August 10, 2015 through 11:59 a.m. on September 4, 2015 unless cancelled sooner by the Captain of the Port. This rule will be enforced while operations associated with ordinance removal are in progress.

Dated: August 10, 2015.

A. J. Gould,

Captain, U.S. Coast Guard, Captain of the Port Miami.