[Federal Register Volume 87, Number 6 (Monday, January 10, 2022)]
[Rules and Regulations]
[Pages 1076-1078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00168]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0011]
RIN 1625-AA00


Safety Zone; Deep Creek, Elizabeth River, Chesapeake, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain navigable waters of Deep Creek and the Elizabeth River. The 
safey zone is needed to safeguard personnel and vessels from potential 
hazards associated with an incident involving an adrift barge that has 
struck a power transmission tower in the waterway. Entry of vessels or 
persons into this zone is prohibited unless specifically authorized by 
the Captain of the Port Sector Virginia or designated respresentative.

DATES: This rule is effective without actual notice from January 10, 
2022 until January 19, 2022. For the purposes of enforcement, actual 
notice will be used from January 4, 2022, until January 10, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0011 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LCDR Ashley Holm, Sector Virginia, Waterways Management 
Division, 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

    On January 3, 2022, an adrift barge struck a power transmission 
tower in the navigable waters of Deep Creek and the Elizabeth River 
causing the tower to lean. The structural integrity of the transmission 
tower is unknown at this time creating a potential hazard to navigation 
including the potential for de-energized power lines to enter the 
waterway. Every effort is being made to ensure the structure is 
supported until power lines can be disconnected and the tower is 
removed. 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 it would be impracticable and 
contrary to public interest. The Coast Guard received information about 
this potential hazard to navigation on January 3, 2022. Immediate 
action is needed to protect transiting vessels from the damaged 
transmission tower causing a potential hazard to navigation which 
includes the potential for de-energized power lines to enter the 
waterway.
    For those same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register. Delaying the 
effective date of this rule would be impracticable and contrary to the 
public interest because immediate action to restrict vessel traffic is 
needed to protect life, property and the environment. Delaying the 
effective date would be contrary to the safety zone's intended 
objectives of protecting personnel and vessel from the immediate 
potential hazard, enhancing maritime safety.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Virginia 
(COTP) has determined a potential hazardous situation in Deep Creek, 
Southern Branch of the Elizabeth River, requires the establishment of a 
safety zone to protect personnel and vessels transiting the area.

[[Page 1077]]

IV. Discussion of the Rule

    The U.S. Coast Guard is establishing a temporary safety zone on 
certain navigable waters in the vicinity of Deep Creek, Southern Branch 
of the Elizabeth River north of the I-64/High Rise Bridge. This rule 
will be in effect from January 4, 2022, through January 19, 2022. The 
duration of the zone is intended to protect vessels from a damaged 
power transmission tower causing potential hazard to navigation in the 
waterway and to protect personnel performing repair and recovery. 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 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

    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. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the safety zone 
being in effect for a limited duration; this is a portion of the 
waterway with minimal vessel traffic; and the Coast Guard will continue 
to make notifications via maritime broadcasts.

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 
call or email 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.

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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 for 15 days that will prohibit entry within certain 
navigable waters of the Southern Branch of the Elizabeth River. It is 
categorically excluded from further review under paragraph L60(c) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.

[[Page 1078]]


0
2. Add Sec.  165.T05-0861to read as follows:


Sec.  165.T05-0861  Safety Zone; Deep Creek, Elizabeth River, 
Chesapeake, VA.

    (a) Location. The following area is a safety zone: The waters 
enclosed by the shoreline and the following lines: A line drawn across 
Deep Creek, Elizabeth River from 36-45.71N 076-18.52W to 36-45.64N 076 
18.52W and a line drawn across Deep Creek, Elizabeth River from 36-
45.74N 076-18.30W to 36-45.66N 076-18.30W.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sector Virginia (COTP) in the enforcement of the 
safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by VHF/FM Chanel 16. Those in the safety zone must 
comply with all lawful orders or directions given to them by the COTP 
or the COTP's designated representative.
    (d) Enforcement period. This section will be enforced January 4, 
2022, through January 19, 2022, unless canceled sooner by the COTP.

    Dated: January 4, 2022.
Samson C. Stevens,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2022-00168 Filed 1-7-22; 8:45 am]
BILLING CODE 9110-04-P