[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Rules and Regulations]
[Pages 89865-89867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29840]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0987]
RIN 1625-AA00


Safety Zone; James River, Newport News, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the James River within 1500-foot radius of the M/V 
SS DEL MONTE, in the vicinity of the James River Reserve Fleet, in 
support of United States Navy explosive training on the M/V SS DEL 
MONTE. This action is necessary to provide for the safety of life and 
property on the surrounding navigable waters during the United States 
Navy explosives training. 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 without actual notice from December 13, 
2016 through 4 p.m. on December 16, 2016. For the purposes of 
enforcement, actual notice will be used from 8 a.m. on December 12, 
2016, through December 13, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0987 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, Sector Hampton Roads Waterways 
Management, 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 because information about the training 
starting at 8 a.m. on December 12, 2016, through 4 p.m. on December 16, 
2016, was not received by the Coast Guard until October 25, 2016. 
Failure to conduct this required training at this time will result in a 
lapse in personnel qualification standards and, consequently, the 
inability of Navy personnel to carry out important national security 
functions. Due to the timing of the notification it would be 
impracticable for the Coast Guard to publish an NPRM because there is 
insufficient time to allow for an opportunity for public comment on the 
proposed rule. Publishing an NPRM would be contrary to the public 
interest since immediate action is necessary to protect the public 
safety by ensuring the standards of training are met. The potential 
hazards to mariners within the safety zone include shock waves, flying 
shrapnel, and loud noises. We are issuing this 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. 
As noted above, failure to conduct this required training at this time 
will result in a lapse in personnel qualification standards and, 
consequently, the inability of Navy personnel to carry out important 
national security functions. Due to the need for immediate action, the 
restriction on vessel traffic is necessary to protect life, property 
and the environment. 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 the military training starting at 8 
a.m. on December 12, 2016, through 4 p.m. on December 16, 2016, will be 
a safety concern for anyone within a 1500-foot radius of the M/V SS DEL 
MONTE. This rule is needed to protect the participants,

[[Page 89866]]

patrol vessels, and other vessels transiting the navigable waters of 
the James River, in the vicinity of the James River Reserve Fleet, from 
hazards associated with military explosives operations. The potential 
hazards to mariners within the safety zone include shock waves, flying 
shrapnel, and loud noises.

IV. Discussion of the Rule

    This rule establishes a safety zone from 8 a.m. on December 12, 
2016, through 4 p.m. on December 16, 2016. The safety zone will 
encompass all navigable waters within a 1500-foot radius of the M/V SS 
DEL MONTE located in approximate position 37[deg]06'11'' N., 
076[deg]38'40'' W. The duration of the zone is intended to protect 
personnel and vessels in these navigable waters while the training is 
in effect. This safety zone still allows for navigation on the waterway 
around the safety zone. Access to the safety zone will be restricted 
during the effective period. Except for participants and vessels 
authorized by the Captain of the Port or his Representative, no person 
or vessel may enter or remain in the regulated area.

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

    This rule is not a ``significant regulatory action,'' under 
Executive Order 12866. Accordingly, it has not been reviewed by the 
Office of Management and Budget.
    The Coast Guard expects the economic impact of this rule to be 
nominal. This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. This safety 
zone which will impact a small designated area of the James River in 
Newport News, Virginia, beginning at 8 a.m. on December 12, 2016, 
through 4 p.m. on December 16, 2016. The safety zone will occur during 
a time of year when vessel traffic is normally low and vessel; traffic 
will be able to safety transit around the safety zone. 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. 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 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 less than 4 days that will prohibit 
entry within 1500 feet of the M/V SS DEL MONTE along the James River. 
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.

[[Page 89867]]

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.

H. Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive order 12988, Civil Justice 
Reform to eliminate ambiguity, minimize litigation, establish clear 
legal standards, and reduce burden.

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 Sec.  165.T05-0987 to read as follows:


165.T05-0987  Safety Zone, James River; Newport News, VA.

    (a) Definitions. For the purposes of this section--
    Captain of the Port means the Commander, Sector Hampton Roads.
    Participants mean 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 James River Reserve Fleet, in the James 
River, within a 1500-foot radius of the M/V SS DEL MONTE in approximate 
position 37[deg]06'11'' N., 076[deg]38'40'' 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 within this safety zone when this section becomes 
effective must 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 except 
participants and vessels that are engaged in the following operations:
    (i) Enforcing laws;
    (ii) Servicing aids to navigation, and
    (iii) Emergency response vessels.
    (d) Enforcement. 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 rule will be enforced from 8 a.m. on 
December 12, 2016, through 4 p.m. on December 16, 2016.

Richard J. Wester,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2016-29840 Filed 12-12-16; 8:45 am]
 BILLING CODE 9110-04-P