[Federal Register Volume 87, Number 68 (Friday, April 8, 2022)]
[Proposed Rules]
[Pages 20796-20798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07540]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0915]
RIN 1625-AA00


Safety Zones for Parallel Thimble Shoal Tunnel Project on the 
Chesapeake Bay Bridge Tunnel; Chesapeake Bay, VA

AGENCY: Coast Guard, Homeland Security (DHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish temporary safety 
zones for certain waters of the Chesapeake Bay. This action is 
necessary to provide for the safety of life on these navigable waters 
near the Chesapeake Bay Bridge Tunnel (CBBT), linking Southeastern 
Virginia to the Eastern Shore, during an already ongoing construction 
project on the CBBT. This proposed rulemaking would prohibit persons 
and vessels from operating within 500 feet of the construction area 
unless authorized by the Captain of the Port (COTP) Sector Virginia or 
a designated representative. We invite your comments on this proposed 
rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 23, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2021-0915 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email LCDR Ashley Holm, Sector Virginia, 
Waterways Management Division, U.S. Coast Guard, Telephone: (757) 668-
5581; Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CBBT Chesapeake Bay Bridge Tunnel
CFR Code of Federal Regulations
COTP Captain of the Port Sector Virginia
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    In December, 2021, the COTP was notified by project management for 
the Parallel Thimble Shoals Tunnel Project that construction work in 
vicinity of the CBBT's southern two islands, South Thimble Island and 
North Thimble Island, creates hazards to the maritime public and 
recommended the establishment of safety zones. Hazards include the 
operation of heavy machinery and loads suspended by cranes over the 
waters surrounding the islands and attached structures. Specifically, 
safety concerns were raised that involved kayakers and vessels fishing 
in the vicinity of the construction site despite posted signs 
indicating not to approach the site within 500 feet. The COTP has 
determined that potential hazards associated with the construction 
equipment used in this project creates a safety concern for those 
transiting within 500 feet of the project site. This construction 
project has been ongoing for 4 years, workers are present at all hours 
and the work is projected to continue for the next 5 years.
    This rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while the 
bridge tunnel is under construction. The Coast Guard is proposing this 
rulemaking under authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP is proposing to establish two temporary safety zones 
extending 500 feet in all directions from the edge of both South 
Thimble Island and North Thimble Island. These islands are located 
approximately 3.3 miles and 4.5 miles respectively, from the shores of 
Virginia Beach, Virginia, along Highway 13, and serve as the ends of 
what is commonly called the Chesapeake Bay Bridge [southern] Tunnel. 
The safety zones would be in effect until January 31, 2027. No vessel 
or person would be permitted to enter either of the safety zones 
without obtaining permission from the COTP or a designated 
representative. The regulatory text we are proposing appears at the end 
of this document.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and

[[Page 20797]]

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 NPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    This regulatory action determination is based on its minimal impact 
to the local economy, as any fishery needing to use these waters can be 
accommodated by the two other man-made islands approximately 5 miles to 
the north and the attached 15 miles of bridge trestle which are not 
covered with construction equipment, and therefore will not be covered 
by these safety zones.

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 
proposed rule would 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 zones may be small entities, for the reasons stated in section 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.
    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 proposed rule. If the proposed 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. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because it would 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 proposed rule has implications for federalism or 
Indian tribes, please call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section.

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 proposed rule would not 
result in such an expenditure, we do discuss the potential effects of 
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made 
a preliminary determination 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 proposed rule involves the 
establishment of safety zones to protect the public from hazards 
created by ongoing construction work. Normally such actions are 
categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 
preliminary Record of Environmental Consideration supporting this 
determination is available in the docket. For instructions on locating 
the docket, see the ADDRESSES section of this preamble. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2021-0915 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.

[[Page 20798]]

    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. We review all comments received, but we will only 
post comments that address the topic of the proposed rule. We may 
choose not to post off-topic, inappropriate, or duplicate comments that 
we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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 is 
proposing to amend 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.

0
2. Add Sec.  165.T05-0915 to read as follows:


Sec.  165.T05-0915  Safety Zones; Chesapeake Bay Bridge Tunnel, 
Chesapeake Bay Entrance, VA.

    (a) Location. The following areas are safety zones:
    (1) Any waters located within 500 feet in all directions from the 
edge of South Thimble Island. South Thimble Island is located 
approximately 3.3 miles north of the shores of Virginia Beach on 
Highway 13, also known as the Chesapeake Bay Bridge Tunnel (CBBT).
    (2) Any waters located within 500 feet in all directions from the 
edge of North Thimble Island. North Thimble Island is located 
approximately 4.5 miles north of Virginia Beach on Highway 13.
    (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 zones. The term also includes an employee or contractor of 
Chesapeake Tunnel Joint Venture (CTJV) for the sole purpose of 
designating and establishing safe transit corridors, to permit passage 
into or through these safety zones, or to notify vessels and 
individuals that they have entered a safety zone and are required to 
depart immediately.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, no vessel or person may enter or remain in any 
safety zone described in paragraph (a) of this section unless 
authorized by the COTP, or designated representative. If a vessel or 
person is notified by the COTP, or designated representative that they 
have entered one of these safety zones without permission, they are 
required to immediately depart in a safe manner following the 
directions given.
    (2) Mariners requesting to transit any of these safety zones must 
first contact the CTJV designated representatives, CTJV Marine General 
Superintendant by phone at 361-244-8852, CTJV Safety Director at 702-
415-8600, or CTJV Construction Manager at 757-782-7741. CTJV will be 
monitoring VHF-FM channels 13 and 16 while work is ongoing. If 
permission is granted, mariners must proceed at their own risk and 
strictly observe any and all instructions provided by the COTP, or 
designated representative to the mariner regarding the conditions of 
entry to and exit from any location within the fixed safety zones.
    (d) Enforcement. The Sector Virginia COTP may enforce the 
regulations in this section and may be assisted by any Federal, state, 
county, or municipal law enforcement agency.
    (e) Enforcement period. This section will be enforced until January 
31, 2027, unless cancelled sooner by the COTP.

    Dated: April 04, 2022.
Samson C. Stevens,
Captain, U.S. Coast Guard, Captain of the Port Sector Virginia.
[FR Doc. 2022-07540 Filed 4-7-22; 8:45 am]
BILLING CODE 9110-04-P