[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Rules and Regulations]
[Pages 67063-67065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26670]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2014-0693]
RIN 1625-AA00


Safety Zone, Elizabeth River; Portsmouth, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone on the navigable 
waters of the Elizabeth River in Portsmouth, VA for 12 periods of 48 
hours beginning at midnight on January 5, January 12, January 19, 
January 22, January 27, February 9, March 2, March 5, March 10, March 
23, March 30 and April 6, 2015. This action will restrict vessel 
traffic movement in the designated area during construction of the new 
Midtown Tunnel. This action is necessary to protect the life and 
property of the maritime public due to the number of work vessels in 
the designated area and their lack of maneuverability while engaged in 
construction operations.

DATES: This rule will be effective from January 5, 2015, through April 
6, 2015. This rule will be enforced for 12 periods of 48 hours in 
length, beginning at midnight on January 5, January 12, January 19, 
January 22, January 27, February 9, March 2, March 5, March 10, March 
23, March 30, and April 6, 2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2014-0693]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. 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 LCDR Gregory Knoll, Waterways Management Division Chief, 
Sector Hampton Roads, Coast Guard; telephone (757)-668-5580, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Cheryl Collins, Program 
Manager, Docket Operations, telephone (202)-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    SKW Constructors are building a second span for the Midtown Tunnel 
between Portsmouth and Norfolk, VA and will be conducting operations 
that require closures of the federal channel beginning in January 2015. 
A Notice of Proposed Rulemaking (NPRM) was published on August 25, 2014 
in the Federal Register (79 FR 50571).
    The Coast Guard received one comment on the NPRM, which is 
addressed below in Section C. No request for a public meeting was 
received, and no meeting was held.

B. Basis and Purpose

    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; 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, 160.5; Public Law 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.
    Due to increased vehicle traffic in the Hampton Roads area, SKW 
Constructors, in concert with Elizabeth River Crossings and the 
Virginia Department of Transportation, is constructing a second tunnel 
parallel to the existing Midtown Tunnel between Portsmouth and Norfolk, 
VA. The construction will involve submerging elements of the new 
Midtown Tunnel. The presence of working vessels and the inability to 
maneuver submerged equipment necessitate closures of the federal 
channel. The closures will be in effect for 12 48-hour periods to allow 
SKW Constructors to install the segments of the tunnel that overlap the 
federal channel.
    The Coast Guard is establishing a safety zone in the portion of the 
Elizabeth River between Elizabeth River Channel Buoy 31 (LLNR 9835) and 
Elizabeth River Channel Buoy 34 (LLNR 9855). The first of the 12 
scheduled closures will begin at midnight on January 5, 2015; the final 
scheduled closure will begin at midnight on April 6, 2015. The dates 
and hours are subject to change due to weather, scheduling conflicts, 
equipment failure and other unforeseen factors. Any changes to these 
dates will be listed in the Federal

[[Page 67064]]

Register if time permits, and in all cases will be communicated via 
marine information broadcasts.

C. Discussion of Comments, Changes, and the Final Rule

    The Coast Guard received one comment expressing concern about the 
lengths of the closures and the economic impact on business operations. 
The comment also requested a working group of industry members and the 
Coast Guard to determine the potential impact of the closures. No 
formal working group was assigned, but the Coast Guard and SKW 
participated in extensive dialogues over several years with a wide 
range of port partners and interested parties including, but not 
limited to, the Virginia Maritime Association, Virginia Pilots 
Association, Association of Virginia Docking Pilots, Independent 
Docking Pilots, and U.S. Navy. In addition to being discussed at 
meetings exclusively pertaining to the Midtown Tunnel, the topic has 
been on the agenda at multiple Area Maritime Security Committee and 
Maritime Transportation System Planning Subcommittee meetings, at which 
port partners, including industry representatives, were afforded the 
opportunity to discuss the potential impact of the closures.
    The decision to close the channel for 12 periods of 48 hours in 
length comes as a result of these extensive and widespread discussions, 
which have been occurring since the earliest proposals for the project 
in 2007. Every effort has been made to reduce the length of time the 
channel is closed and any adverse impacts resulting therefrom. Based on 
these efforts, it was determined that 12 closures of 48 hours in length 
constitutes the best available means to complete the project. Further, 
12 separate closures, rather than one extended closure, will enable SKW 
to complete the work while enabling traffic to flow between the closure 
periods, making it the least burdensome and best available plan.
    The NPRM published on August 25, 2014 stated that the first channel 
closure would begin on January 1, 2015. The first closure will actually 
begin on January 5, 2015 at midnight. This change is reflected in the 
instant Final Rule.
    The Captain of the Port of Hampton Roads is establishing a safety 
zone in the portion of the Elizabeth River between Elizabeth River 
Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel Buoy 34 (LLNR 
9855). The zone will be effective for 12 periods of 48 hours in length, 
with each respective period beginning at midnight on January 5, January 
12, January 19, January 22, January 27, February 9, March 2, March 5, 
March 10, March 23, March 30 and April 6, 2015. The dates and hours are 
subject to change due to weather, scheduling conflicts, equipment 
failure and other unforeseen factors. Any changes to these dates will 
be listed in the Federal Register if time permits, and in all cases 
will be communicated via marine information broadcasts. No person or 
vessel may enter or remain in the regulated area unless authorized by 
the Captain of the Port, Hampton Roads or his designated 
Representative.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those orders. Although this regulation 
restricts access to the safety zone, the effect of this rule will not 
be significant because: (i) the safety zone will be in effect for a 
limited duration; (ii) the zone is of limited size; and (iii) the Coast 
Guard will make notifications via maritime advisories so mariners can 
adjust their plans accordingly.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 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. The rule may affect the following entities, some of 
which might be small entities: the owners or operators of vessels 
intending to transit or anchor in the specified portion of the 
Elizabeth River during the specified dates and times.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: (i) The 
safety zone will only be in place for a limited duration; and (ii) 
before the enforcement period, maritime advisories will be issued 
allowing mariners to adjust their plans accordingly.

3. Assistance for 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, 
above. 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.

4. 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).

5. 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.

6. 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

[[Page 67065]]

jeopardizing the safety or security of people, places or vessels.

7. 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.

8. Taking of Private Property

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

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. 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 
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 involves establishing a safety zone. This rule is 
categorically excluded from further review under paragraph (34)(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist supporting this determination and a Categorical Exclusion 
Determination are 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 rule.

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

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 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


0
2. Add Sec.  165.T05-0693 to read as follows:


Sec.  165.T05-0693  Safety Zone, Elizabeth River; Portsmouth, VA.

    (a) Definitions. For the purposes of this section, Captain of the 
Port means the Commander, Sector Hampton Roads. Representative means 
any Coast Guard commissioned, warrant or petty officer who has been 
authorized to act on the behalf of the Captain of the Port.
    (b) Location. The following area is a safety zone: specified waters 
of the Captain of the Port Sector Hampton Roads zone, as defined in 33 
CFR 3.25-10: the marked channel of the Elizabeth River between 
Elizabeth River Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel 
Buoy 34 (LLNR 9855).
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port, Hampton Roads or his designated 
Representative.
    (2) The operator of any vessel in the immediate vicinity of this 
safety zone shall:
    (i) Contact on scene contracting vessels via VHF channel 13 and 16 
for passage instructions.
    (ii) If on scene proceed as directed by any commissioned, warrant 
or petty officer on shore or on board a vessel that is displaying a 
U.S. Coast Guard Ensign.
    (3) The Captain of the Port, Hampton Roads can be reached through 
the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia 
at telephone number (757) 668-5555.
    (4) The Coast Guard Representatives enforcing the safety zone can 
be contacted on VHF-FM marine band radio channel 13 (165.65Mhz) and 
channel 16 (156.8 Mhz).
    (d) Enforcement Period. This section will be enforced for 12 
periods of 48 hours in length beginning at midnight on January 5, 
January 12, January 19, January 22, January 27, February 9, March 2, 
March 5, March 10, March 23, March 30 and April 6, 2015. Any deviations 
from these times willbe communicated via marine information broadcasts.

    Dated: October 17, 2014.
Christopher S. Keane,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2014-26670 Filed 11-10-14; 8:45 am]
BILLING CODE 9110-04-P