[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Rules and Regulations]
[Pages 38873-38876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16972]
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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: U.S. Army Corps of Engineers, DoD.
ACTION: Final rule.
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SUMMARY: The Corps of Engineers is establishing restricted areas 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 restricted areas are
necessary to better protect vessels and personnel assigned to JEBLCFS
by implementing a waterside security program. The regulation
establishes the restricted areas in waters within the boundary of the
existing installation and in the entry channel into the harbor.
DATES: Effective September 9, 2019.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO (David Olson),
441 G Street NW, Washington, DC 20314-1000.
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: The proposed rule was published in the May
23, 2018, edition of the Federal Register (83 FR 23867) and the
regulations.gov docket number was COE-2017-0006. In response to the
proposed rule, two comments were received.
One commenter stated that additional clarification was needed
regarding the coordinates for the proposed restricted areas because as
written it is unclear what the intended extent of the areas should be.
The Navy provided corrected coordinates and modified the rule text to
address the charting concerns.
Another commenter questioned the need for the additional
restrictions to enhance security within the waterway, and the commenter
expressed concerns regarding the enforceability of the proposed
restrictions, as well as what impacts they would have on local
businesses, property values, and navigational access. The proposed rule
would have provided greater restrictions within Little Creek Harbor,
including requiring all vessels transiting inbound/outbound of the
Outer Harbor to notify the Little Creek Port Control of their
destination and intentions using VHF-FM channel 12 at all times. In
response to these comments, the restrictions were modified to allow for
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), to
enter or exit the restricted area at any time at a speed commensurate
with minimum wake, except for when the Commanding Officer, JEBLCFS, is
ordered to implement Force Protection Condition (FPCON) Charlie/Delta,
or when specific authority is granted by the District Engineer, at
which time vessel traffic movement within the Outer Harbor may be
restricted temporarily. This rule will not prevent the public from
entering the areas at all times; it will merely restrict the amount of
time during which individuals may enter and stay within those areas,
particularly during periods of increased threats. In order to improve
the safety of military assets, as well as to the public, the rule also
requires vessels entering those areas to provide additional
notification and be given permission to enter the area. The regulation
does not grant the Navy additional legal authority beyond their current
authorities; however, it allows them to use additional resources to
enforce the waterway, such as the U.S. Coast Guard and Virginia Marine
Resource Commission acting within their own authorities to police the
waterway. If conditions warrant elevating restrictions within the Outer
Harbor Restricted Area due to implementation of FPCON Charlie/Delta or
when specifically authorized by the District Engineer, then JEBLCFS
will coordinate with the U.S. Coast Guard to allow vessel entry into
the restricted area upon request. Vessels will still be able to transit
the waterway to access the businesses and private properties located
upstream of the restricted area; therefore, the impacts on businesses
and property values are anticipated to be minimal.
Due to the location of JEBLFC, which is located south of a narrow
inlet off of the Chesapeake Bay, alternatives to the location of a
restricted area within the waterway near the entrance to the water
based side of the installation are limited. This regulation establishes
a restricted area within the Outer Harbor which will be enacted on a
temporary basis during periods of heighted threat conditions. Reducing
the speeds of vessels within the waterway allows the Navy to better
assess vessels as they approach through the narrow opening to the Inner
Harbor. The Navy will be better able to determine whether the vessels
are a threat intending to approach the installation or if they will
make the 90-degree turn west toward the commercial and private
facilities within Fisherman's Cove. Full-time restrictions on the Inner
Harbor Restricted Area will allow the Navy to assess the safety of all
vessels that approach in close vicinity of Government owned vessels and
[[Page 38874]]
property in order to better protect those military assets and the
personal stationed at Little Creek. There are current measures in
place, such as existing barriers and regulations to protect the Navy
vessels within the harbor. However, the restricted areas will provide a
more permanent safety measure and allow for enhanced measures to be
enacted to protect additional property and personnel within the
installation as needed.
In response to the Norfolk District's public notice, 178
individuals submitted requests to the district for a public hearing.
The purpose of a public hearing is to gain information regarding the
proposal that is pertinent to the decision-making process that cannot
be obtained through other means. In accordance with the Corps'
regulations at 33 CFR 334.4(c), the district engineer decides whether
to hold a public hearing for a proposed restricted area or danger zone.
The Norfolk District denied the request for a public hearing because it
determined that, through the proposed rule published in the Federal
Register and the public notice for the proposed rule issued by the
Norfolk District, it received sufficient information to evaluate the
proposal, and that the comments received in response to the proposed
rule have been fully addressed. Therefore, we have determined that
public hearing is not necessary in order to make a decision because a
public hearing is unlikely to provide additional substantive
information for this rulemaking action.
In response to a request by the United States Navy, and 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 amending
33 CFR part 334 to establish a permanent restricted area, in the waters
of Fisherman's Cove and Little Creek Harbor adjacent to Joint
Expeditionary Base Little Creek-Fort Story, Little Creek (JEBLCFS) in
Virginia Beach, Virginia.
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. For the reasons stated
below, this final rule is not a ``significant regulatory action'' under
Executive Order 12866. Accordingly, this final 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 determined this final rule is not a significant
regulatory action because this restricted area regulation allows all
privately owned vessels that are properly registered and bearing
identification in accordance with federal and/or state laws and
regulations, as well as all government-owned vessels, to enter or exit
the Outer Harbor restricted area at any time at a speed commensurate
with minimum wake, except when the Commanding Officer, JEBLCFS, is
ordered to implement Force Protection Condition (FPCON) Charlie/Delta,
or when specific authority is granted by the District Engineer, at
which time vessel traffic movement within the Outer Harbor may be
restricted temporarily. 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 transiting to and from U.S. Navy or U.S. Coast
Guard facilities and authorized DOD patrons of the U.S. Navy
recreational marina, plus any other vessels or persons granted specific
authorization by Commanding Officer, Joint Expeditionary Base Little
Creek-Fort Story, and/or other persons or agencies as he/she may
designate. This rule is issued with respect to a military function of
the Department of Defense and the provisions of Executive Order 12866
do not apply.
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 area 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 because it allows, with
exceptions provide in the rule text, all privately owned vessels that
are properly registered and bearing identification in accordance with
federal and/or state laws and regulations, as well as all government-
owned vessels, to enter or exit the restricted areas at any time at a
speed commensurate with minimum wake. In addition, the restricted areas
are necessary to protect vessels and personnel assigned to JEBLCFS by
implementing a waterside security program. Small 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. After considering the economic impacts of this
final 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 is not required. An environmental
assessment has been prepared. It may be reviewed at the District office
listed at the end of the FOR FURTHER INFORMATION CONTACT section,
above.
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.
e. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing the final rule and
other required information to the U.S. Senate, the U.S. House of
[[Page 38875]]
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This final rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
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 amends 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 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 latitude 36[deg]55'57.7'' N, longitude 76[deg]10'35'' W;
thence southwesterly to a point 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]55'18.3'' 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 near 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]55'18'' N,
longitude 76[deg]10'30'' W.
(b) The regulations--(1) The Outer Harbor Restricted Area. (i) 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 transiting inbound/outbound of the channel except for those
vessels listed in paragraph (c)(2) of this section shall proceed at
speeds commensurate with minimum wake. Any vessel equipped with a
marine radio can monitor VHF-FM channel 12 for message traffic from
Little Creek Port Control.
(ii) When Commanding Officer, Joint Expeditionary Base Little
Creek-Fort Story is ordered to implement Force Protection Conditions
(FPCONs) Charlie/Delta, or when specific authority is granted by the
District Engineer, all vessel traffic movement can be restricted except
for those vessels that meet the criteria in paragraph (c)(2) of this
section. FPCONs are a system of protective measures used by the
Department of Defense (DOD) installations to guard against and deter
terrorist attack. Senior commanders assign the FPCONs for their region,
and installation commanders may raise FPCONS and tighten security
measures based on local conditions. In the event FPCONs Charlie/Delta
is implemented by the Commanding Officer, Joint Expeditionary Base
Little Creek, which requires the restriction of vessel traffic movement
in the Outer Harbor Restricted Area, the installation will coordinate
with the U.S. Coast Guard, Fifth District; Army Corps of Engineers,
Norfolk District; and state and local law enforcement and governmental
authorities. The installation will also disseminate information to the
public and local news media outlets. Information on whether vessel
traffic movement has been restricted in the Outer Harbor Restricted
Area due to the implementation of FPCONs Charlie/Delta will also be
published and disseminated by the U.S. Coast Guard.
(2) The Inner Harbor Restricted Area. All vessels or persons
intending to transit inbound/outbound of the Inner Harbor Restricted
Area shall request permission from Little Creek Harbor Port Control
using VHF-FM channel 12 prior to transiting and will provide their
destination/intentions with the exception of those vessels that meet
the criteria in paragraph (c)(2) of this section. The Inner Harbor
Restricted Area is limited 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 DOD
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.
(3) All vessels or persons transiting inbound/outbound of the Inner
Harbor Restricted Area 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 regulation in this section shall be
enforced by the Commanding Officer, Joint Expeditionary Base Little
Creek-Fort Story, U.S. Coast Guard, local/state law enforcement, and/or
persons or agencies as he/she may designate during emergency
situations.
(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 provisions
described in paragraph (b) of this section. Commanding Officer, Joint
Expeditionary Base Little Creek-Fort Story reserves the right to
temporarily deny entry in emergency situations, elevated DOD Force
Protection conditions in the Harbor, or other safety of navigation
constraints.
[[Page 38876]]
Dated: August 1, 2019.
Thomas P. Smith, P.E.,
Chief, Operations and Regulatory Division, Directorate of Civil Works.
[FR Doc. 2019-16972 Filed 8-7-19; 8:45 am]
BILLING CODE 3720-58-P