[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Proposed Rules]
[Pages 23867-23869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11017]



[[Page 23867]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334

[COE-2017-0006]


Little Creek Harbor, Fisherman's Cove, Joint Expeditionary Base 
Little Creek-Fort Story, Little Creek, Virginia, Restricted Areas

AGENCY: United States Army Corps of Engineers, Department of Defense.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Corps of Engineers is proposing to establish a restricted 
area in the waters of Fisherman's Cove and Little Creek Harbor at Joint 
Expeditionary Base Little Creek-Fort Story, Little Creek (JEBLCFS) in 
Virginia Beach, Virginia. JEBLCFS is the homeport of numerous ships, 
small boats and special operational units. The proposed amendment is 
necessary to better protect vessels and personnel assigned to JEBLCFS 
by implementing a waterside security program. The proposed amendment 
establishes the restricted area waters within the boundaries of the 
existing installation and in the entry channel into the harbor.

DATES: Written comments must be submitted on or before June 22, 2018.

ADDRESSES: You may submit comments, identified by docket number COE-
2017-0006, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected]. Include the docket number, 
COE-2017-0006, in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R (David B. 
Olson), 441 G Street NW, Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2017-0006. 
All comments received will be included in the public docket without 
change and may be made available on-line at http://www.regulations.gov, 
including any personal information provided, unless the commenter 
indicates that the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI, or otherwise protected, through regulations.gov or 
email. The regulations.gov website is an anonymous access system, which 
means we will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email directly 
to the Corps without going through regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the internet. If 
you submit an electronic comment, we recommend that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If we cannot read your comment because 
of technical difficulties and cannot contact you for clarification, we 
may not be able to consider your comment. Electronic comments should 
avoid the use of any special characters, any form of encryption, and be 
free of any defects or viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov. All documents in the 
docket are listed. Although listed in the index, some information is 
not publicly available, such as CBI or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, 
Operations and Regulatory Community of Practice, Washington, DC at 202-
761-4922, or Ms. Nicole Woodward, Corps of Engineers, Norfolk District, 
Regulatory Branch, at 757-201-7122.

SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of 
the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and 
Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 
U.S.C. 3), the Corps of Engineers is proposing amendments to 
regulations in 33 CFR part 334 for the establishment of a new 
restricted area in the waters of Fisherman's Cove and Little Creek at 
JEBLCFS in Virginia Beach, Virginia. In a memorandum dated May 1, 2017, 
the Department of the Navy requested that the Corps modify 33 CFR 334 
to establish a permanent restricted area. The proposed amendment is 
necessary to better protect vessels and personnel assigned to JEBLCFS 
by implementing a waterside security program. The request is in 
response to the possible risks associated with the potential for 
unfettered access to the harbor and the close proximity of a civilian 
marina to naval assets. The proposed amendment establishes the 
restricted area in waters within the boundary of the existing 
installation and in the entry channel into the harbor.

Procedural Requirements

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 13771 directs agencies to control 
regulatory costs through a budgeting process. This proposed rule has 
not been designated a ``significant regulatory action,'' under 
Executive Order 12866. Accordingly, this proposed rule has not been 
reviewed by the Office of Management and Budget (OMB), and pursuant to 
OMB guidance it is exempt from the requirements of Executive Order 
13771.
    The Corps has made a determination this proposed rule is not a 
significant regulatory action. This regulatory action determination is 
based on the proposed rules governing the restricted areas, which allow 
any vessel that needs to transit the restricted areas to do so if the 
operator of the vessel obtains permission from Little Creek Port 
Control or the Commanding Officer, JEBLCFS, and/or other persons or 
agencies as he/she may designate.

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 Corps certifies under 5 U.S.C. 605(b) that this rule would not 
have a significant economic impact on a substantial number of small 
entities. While some owners or operators of vessels that intend to 
transit the restricted areas may be small entities, for the reasons 
stated in paragraph (a) above this rule would not have a significant 
economic impact on any vessel owner or operator. In addition, the 
restricted areas are necessary to protect vessels and personnel 
assigned to JEBLCFS by implementing a waterside security program. Small

[[Page 23868]]

entities can also utilize navigable waters outside of the restricted 
areas. Small entities that need to transit the restricted areas may do 
so as long as the operator of the vessel obtains permission from Little 
Creek Port Control or the Commanding Officer, JEBLCFS, and/or other 
persons or agencies as he/she may designate. The restricted areas are 
necessary for security of JEBLCFS. Unless information is obtained to 
the contrary during the comment period, the Corps expects that the 
economic impact of the proposed restricted areas would have practically 
no impact on the public, any anticipated navigational hazard or 
interference with existing waterway traffic. After considering the 
economic impacts of this restricted area regulation on small entities, 
I certify that this action will not have a significant impact on a 
substantial number of small entities.

c. Review Under the National Environmental Policy Act

    Due to the administrative nature of this action and because there 
is no intended change in the use of the area, the Corps expects that 
this regulation, if adopted, will not have a significant impact to the 
quality of the human environment and, therefore, preparation of an 
environmental impact statement will not be required. An environmental 
assessment will be prepared after the public notice period is closed 
and all comments have been received and considered.

d. Unfunded Mandates Act

    This proposed rule does not impose an enforceable duty among the 
private sector and, therefore, it is not a Federal private sector 
mandate and it is not subject to the requirements of either Section 202 
or Section 205 of the Unfunded Mandates Act. We have also found under 
Section 203 of the Act, that small governments will not be 
significantly and uniquely affected by this rulemaking.

List of Subjects in 33 CFR Part 334

    Danger zones, Marine safety, Navigation (water), Restricted areas, 
Waterways.

    For the reasons set out in the preamble, the Corps proposes to 
amend 33 CFR part 334 as follows:

PART 334--DANGER ZONE AND RESTRICTED AREA REGULATIONS

0
1. The authority citation for 33 CFR part 334 continues to read as 
follows:

    Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 
U.S.C. 3).

0
2. Add Sec.  334.305 to read as follows:


Sec.  334.305   Little Creek Harbor, Fisherman's Cove, Joint 
Expeditionary Base Little Creek-Fort Story, Little Creek, Virginia, 
Restricted Areas.

    (a) The Little Creek Restricted Areas. The Little Creek Restricted 
Areas consist of two distinct areas: The Outer Harbor Restricted Area 
and the Inner Harbor Restricted Area. The datum for the coordinates in 
this section is NAD-83.
    (1) The Outer Harbor Restricted Area. The waters within an area 
beginning at a point on shore at latitude 36[deg]55'57.7'' N, longitude 
76[deg]10'35'' W, thence southwesterly to a point on the opposite shore 
at latitude 36[deg]55'53'' N, longitude 76[deg]10'44'' W, thence 
southerly to latitude 36[deg]55'21.2'' N, longitude 76[deg]10'42'' W, 
thence southwesterly to latitude 36[deg]55'17.8'' N, longitude 
76[deg]10'49'' W, thence northwesterly to a point in Fisherman's Cove 
at latitude 36[deg]55'22'' N, longitude 76[deg]11'15.5'' W, thence 
southerly to latitude 36[deg]55'19.2'' N, longitude 76[deg]11'16'' W, 
thence easterly along the southern shoreline of Fisherman's Cove, to 
latitude 36[deg]55'15.8'' N, longitude 76[deg]10'58.8'' W, and ending 
at latitude 36[deg]55'18'' N, longitude 76[deg]10'30'' W, thence to the 
point of origin.
    (2) The Inner Harbor Restricted Area. The waters within Little 
Creek Harbor south of a line beginning at latitude 36[deg]55'15.8'' N, 
longitude 76[deg]10'58.8'' W, and ending at latitude 36[deg]55'19.3'' 
N, longitude 76[deg]10'29.5'' W.
    (b) The Regulations. (1) All vessels intending to transit inbound/
outbound of the Little Creek Restricted Areas shall notify the Little 
Creek Port Control of their destination and intentions.
    (2) The Outer Harbor Restricted Area. All privately owned vessels 
properly registered and bearing identification in accordance with 
Federal and/or State laws and regulations, and all Government owned 
vessels (public vessels) may enter or exit the waters described in 
paragraph (a)(1) of this section at any time and transit inbound/
outbound of the marked dredged channel leading to Little Creek Harbor 
between jetties 8 miles westward of Cape Henry Light. All vessels 
entering or exiting the channel must notify Little Creek Port Control 
using VHF-FM channel 12, stating their destination/intention. All 
vessels transiting inbound/outbound of the channel except as noted in 
paragraph (c)(2) of this section shall proceed at speeds commensurate 
with minimum wake unless approved by Little Creek Port Control
    (3) The Inner Harbor Restricted Area. Vessels or persons intending 
to transit inbound/outbound within the waters described in paragraph 
(a)(2) of this section shall request permission from Little Creek Port 
Control with the exception of those listed in paragraph (c)(2) of this 
section. This permission shall suffice for Outer Harbor notification. 
The Inner Harbor Restricted Area is restricted to those privately owned 
vessels or persons calling upon the commercial/private piers located 
within the Inner Harbor and Government owned vessels (public vessels) 
transiting to and from U.S. Navy or U.S. Coast Guard facilities, and 
authorized Department of Defense patrons of the U.S. Navy recreational 
marina. No other vessels or persons may enter or exit this area unless 
specific authorization is granted by Commanding Officer, Joint 
Expeditionary Base Little Creek-Fort Story, and/or other persons or 
agencies as he/she may designate.
    (4) All vessels or persons transiting inbound/outbound of the Outer 
and Inner Harbor restricted areas are subject to all applicable federal 
and state laws including laws or regulations designed to protect the 
naval facility, and persons or vessels assigned therein. Federal and 
State law enforcement officials may at any time take action to ensure 
compliance with their respective laws. In addition, this regulation 
authorizes Navy security personnel, designated by Commander, Joint 
Expeditionary Base Little Creek-Fort Story or persons authorized to act 
in his/her behalf, the authority to ascertain the identity and intent 
of any vessels and/or persons transiting the restricted area that 
indicate by way of appearance or action they are a possible threat to 
government assets. If a determination is made that the vessel and/or 
persons are a threat to government assets located within the restricted 
area, Navy security units may take actions as provided by law or 
regulation that are deemed necessary to protect government personnel 
and assets located within the restricted area.
    (c) Enforcement. (1) The regulations in this section shall be 
enforced by the Commanding Officer, Joint Expeditionary Base Little 
Creek-Fort Story and/or persons or agencies as he/she may designate.
    (2) Federal and State Law enforcement vessels and personnel may 
enter anywhere in the restricted area at any time in the operation of 
their statutory missions or to enforce their respective laws.
    (3) Nothing in this regulation is deemed to preempt 33 CFR 165.501.
    (4) Vessels or persons calling upon the commercial/private piers 
located within the Inner Harbor with proper identification and 
clearance will be allowed entry subject to the same

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provisions described in paragraph (b) of this section. Commander, Joint 
Expeditionary Base Little Creek-Fort Story reserves the right to 
temporarily deny entry in emergency situations, elevated Department of 
Defense Force Protection conditions in the Harbor, or other safety of 
navigation constraints.

    Dated: May 11, 2018.
Thomas P. Smith,
Chief, Operations and Regulatory Division, Directorate of Civil Works.
[FR Doc. 2018-11017 Filed 5-22-18; 8:45 am]
 BILLING CODE 3720-58-P