[Federal Register Volume 81, Number 148 (Tuesday, August 2, 2016)]
[Rules and Regulations]
[Pages 50622-50624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18339]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0416]
RIN 1625-AA00


Safety Zone; Chesapeake Bay, Cape Charles, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters in the vicinity of the inlet of Kings Creek, on the 
Chesapeake Bay. The safety zone is needed to protect personnel, 
vessels, and the marine environment from potential hazards associated 
with a fireworks display, which include accidental discharge of 
fireworks, dangerous projectiles, and falling hot embers or other 
debris. Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by the Captain of the Port Hampton Roads.

DATES: This rule is effective from 8:30 p.m. on August 6, 2016, through 
10:30 p.m. on August 7, 2016. This rule will be enforced from 8:30 p.m. 
through 10:30 p.m. on August 6, 2016, unless the fireworks display is 
postponed because of adverse weather, in which case this rule will be 
enforced from 8:30 p.m. through 10:30 p.m. on August 7, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0416 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LCDR Barbara Wilk, Waterways Management Division Chief, 
Sector Hampton Roads, U.S. Coast Guard; telephone 757-668-5580, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
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 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. It is impracticable for us to publish an 
NPRM because information about the fireworks was received by the Coast 
Guard without sufficient time to publish a proposed rule and consider 
comments on it and then issue an effective rule by August 6, 2016. The 
Coast Guard will provide advance notifications to users of the affected 
waterway via marine information broadcasts and local notice to 
mariners.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause for 
making it effective less than 30 days after publication in the Federal 
Register. The restriction on vessel traffic is necessary to protect 
life, property and the environment, on the scheduled day and rain date 
for the fireworks display when there are expected to be more than 2,000 
spectators present. Therefore, due to the need to have a rule effective 
starting August 6, it is impracticable to delay the effective date of 
this rule until 30 days after it is published. Delaying the effective 
date would be contrary to the safety zone's intended objectives of 
protecting persons and vessels, and enhancing public and maritime 
safety.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Hampton Roads (COTP) has determined that 
potential hazards associated with fireworks display starting on August 
6, 2016, with a rain date of August 7, 2016, will be a safety concern 
for anyone within a 280 foot radius of the launching site. This rule is 
needed to protect personnel, vessels, and the marine environment in the 
navigable waters within the safety zone during the fireworks display. 
The potential hazards to mariners within the safety zone include 
accidental discharge of fireworks, dangerous projectiles, and falling 
hot embers or other debris.

IV. Discussion of the Rule

    This rule establishes a safety zone from 8:30 p.m. through 10:30 
p.m. on August 6, 2016, with a rain date of August 7, 2016. This rule 
will only be subject to enforcement on August 7, 2016, if the scheduled 
August 6 fireworks display is postponed because of adverse weather. The 
safety zone will encompass all navigable waters of the of the inlet of 
Kings Creek, on the Chesapeake Bay, within a 280 foot radius of the 
fireworks launch site in approximate position 37[deg]16'53'' N., 
076[deg]00'42'' W. (NAD 1983). The duration of the zone is intended to 
protect personnel, vessels, and the marine environment in these 
navigable waters during the fireworks display. 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 order 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 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 Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. Vessel traffic 
will be able to safely transit around this safety zone which will 
impact a small designated area of the Chesapeake Bay in Cape Charles, 
VA for one hour. Moreover, the Coast Guard will issue Broadcast Notice 
to Mariners via VHF-FM marine channel 16 about the zone and the rule 
allows vessels to seek permission to enter the zone.

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.

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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 
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 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. 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 (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 lasting two hours that will prohibit entry 
in all navigable waters within a 280 foot radius of the launching site. 
It 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.

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, 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; 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.


0
2. Add, under the undesignated center heading Fifth Coast Guard 
District, temporary Sec.  165.T05-0416 to read as follows:


Sec.  165.T05-0416  Safety Zone, Chesapeake Bay; Cape Charles, VA.

    (a) Definitions. For the purposes of this section--
    ``Captain of the Port'' means the Commander, Sector Hampton Roads.
    ``Participants'' means individuals and vessels involved in 
explosives training.
    ``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: All waters in 
the vicinity of the of the inlet of Kings Creek, on the Chesapeake Bay, 
within a 280 foot radius of the fireworks launch site in approximate 
position 37[deg]16'53'' N., 076[deg]00'42'' W. (NAD 1983).
    (c) Regulations. (1) The general regulations governing safety zones 
in Sec.  165.23, apply to the area described in paragraph (b) of this 
section.
    (2) With the exception of participants, entry into or remaining in 
this safety zone is prohibited unless authorized by the Captain of the 
Port, Hampton Roads or his designated representatives.
    (3) All vessels underway within this safety zone at the time it is 
implemented are to depart the zone immediately.
    (4) The Captain of the Port, Hampton Roads or his representative 
can be contacted at telephone number (757) 668-5555.
    (5) The Coast Guard and designated security vessels enforcing the 
safety zone can be contacted on VHF-FM marine band radio channel 13 
(165.65Mhz) and channel 16 (156.8 Mhz).
    (6) This section applies to all persons or vessels wishing to 
transit through the safety zone except participants and vessels that 
are engaged in the following operations: Enforcing laws, servicing aids 
to navigation, and emergency response vessels.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and

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enforcement of the safety zone by Federal, State, and local agencies.
    (e) Enforcement period. This section will be enforced from 8:30 
p.m. through 10:30 p.m. on August 6, 2016, with a rain date on August 
7, 2016.

    Dated: July 19, 2016.
Richard J. Wester,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2016-18339 Filed 8-1-16; 8:45 am]
 BILLING CODE 9110-04-P