[Federal Register Volume 87, Number 111 (Thursday, June 9, 2022)]
[Rules and Regulations]
[Pages 35092-35094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12408]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0473]
RIN 1625-AA00


Safety Zone; Firework Display; Elizabeth River, Norfolk, VA

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 500 yard radius from a fireworks barge 
located near Town Point Park in Norfolk, VA. The purpose of this 
rulemaking is to ensure the safety of persons, vessels, and the 
navigable waters within close proximity to fireworks displays before, 
during, and after the scheduled events. Hazards with this event include 
potential falling debris and possible fire, explosion, projectile, and 
burn hazards. Entry of vessels or persons into this zone is prohibited 
unless specifically authorized by the Captain of the Port (COTP) 
Virginia.

DATES: This rule is effective from noon on June 10, 2022, through 11:59 
p.m. on June 12, 2022. This rule will be enforced from 8 p.m. until 11 
p.m. on June 11, 2022, or those same hours on June 12, 2022, in the 
case of inclement weather on June 11, 2022. This rule may also be 
enforced during additional times during the effective period if deemed 
necessary by the COTP or the Coast Guard designated representative. The 
COTP or designated representative will notify the public of additional 
enforcement of this zone during its effective period by all appropriate 
means to affect the widest publicity among the affected public, 
including by Local Notices to Mariners and by Broadcast Notice to 
Mariners over VHF-FM marine band radio.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0473 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 Ashley Holm, Chief, Waterways Management Division, 
Sector Virginia, U.S. Coast Guard; telephone 757-668-5580 email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

[[Page 35093]]

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. It is impracticable and contrary to the 
public interest to publish an NPRM for this rule because this safety 
zone must be in effect by June 11, 2022, to ensure the safety of 
persons, vessels, and the navigable waters within close proximity to 
the fireworks display from potential hazards that associated with this 
event. These potential hazards include falling debris and possible 
fire, explosion, projectile, and burn hazards. There is not sufficient 
time to allow for a notice and comment period prior to the event.
    While we are unable to provide the public a chance to comment on 
the temporary final rule establishing a safety zone for this year's 
event, we have recently solicited comments from the public for a safety 
zone at this location for future fireworks displays associated with 
Harborfest. On March 18, 2022, the Coast Guard published an NPRM to 
amend its safety zones established for recurring marine events and 
fireworks displays that take place within the Fifth Coast Guard 
District area of responsibility (87 FR 15347). That proposal included 
the addition of a recurring safety zone for Harborfest at the same 
location as this temporary final rule. On May 13, 2022, the final rule 
was published and the Coast Guard addressed the one comment received 
(87 FR 29226). This temporary final rule is needed because the final 
rule establishing the recurring event will not be effective until after 
the event for this year.
    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 would 
be impracticable and contrary to the public interest. Immediate action 
is needed to ensure the safety of event spectators, support craft and 
other vessels transiting the navigational waters adjacent to the event. 
For the safety concerns noted, it is in the public interest to have 
these regulations in effect during the event. However, advance 
notifications will be made to affected users of the waterway via marine 
information broadcasts and an article in the Local Notice to Mariners.

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 COTP has determined that 
potential hazards associated with the fireworks events present a safety 
concern for anyone within the safety zone. The purpose of this rule is 
to ensure safety of vessels and the navigable waters in the safety zone 
before, during, and after the scheduled event.

IV. Discussion of the Rule

    This rule establishes a safety zone from noon on June 10, 2022, 
through 11:59 p.m. on June 12, 2022. This rule will be enforced from 8 
p.m. until 11 p.m. on June 11, 2022, or those same hours on June 12, 
2022, in the case of inclement weather on June 11, 2022. This rule may 
also be enforced during additional times during the effective period if 
deemed necessary by the COTP or the Coast Guard designated 
representative. The COTP or designated representative will notify the 
public of additional enforcement of this zone during its effective 
period by all appropriate means to affect the widest publicity among 
the affected public, including by Local Notices to Mariners and by 
Broadcast Notice to Mariners over VHF-FM marine band radio.
    The safety zone will cover all navigable waters within a 500 yard 
radius from a fireworks barge located at approximate latitude 
36[deg]50'41'' N, longitude 076[deg]17'47'' W, located near Town Point 
Park in Norfolk, VA. The duration of the zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters during the fireworks display. 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 short amount 
of time that vessels will be restricted from certain parts of the 
waterway and the small size of these areas that are usually positioned 
away from high vessel traffic zones. This rule will be in effect for 36 
hours. Generally vessels would not be precluded from getting underway, 
or mooring at any piers or marinas currently located in the vicinity of 
the regulated area. Advance notifications will also be made to the 
local maritime community by issuance of Local Notice to Mariners, 
Broadcast Notice to Mariners via VHF-FM marine channel 16, and Marine 
Safety Information or Security Bulletins so mariners can adjust their 
plans accordingly. The Coast Guard anticipates that this safety zone 
will only be enforced for a limited duration while it is in effect.

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

[[Page 35094]]

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 only 30 minutes that will prohibit entry within 500 
yards of a fireworks barge. It is categorically excluded from further 
review under paragraph L60c of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 1. A Memorandum for Record is available in 
the docket. For instructions on locating the docket, see the ADDRESSES 
section of this preamble.

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.


0
2. Add Sec.  165.T05-0473 to read as follows:


Sec.  165.T05-0473   Safety Zone; Firework Display; Elizabeth River, 
Norfolk, VA.

    (a) Location. The following area is a safety zone: all waters of 
the Elizabeth River within a 500 yard radius from a fireworks barge 
located at approximate position latitude 36[deg]50'41'' N, longitude 
076[deg]17'47'' W, located near Town Point Park in Norfolk, VA.
    (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 (COTP) Virginia in the enforcement of the special 
local regulation.
    (c) Regulation. (1) No vessel or person is permitted to enter the 
safety zone without obtaining permission from the COTP or a designated 
representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative via VHF FM Channel 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 from 8 p.m. 
until 11 p.m. on June 11, 2022, or those same hours on June 12, 2022, 
in the case of inclement weather on June 11, 2022. This section may 
also be enforced during additional times during the effective period if 
deemed necessary by the COTP or the Coast Guard designated 
representative. The COTP or designated representative will notify the 
public of additional enforcement of this zone during its effective 
period by all appropriate means to affect the widest publicity among 
the affected public, including by Local Notices to Mariners and by 
Broadcast Notice to Mariners over VHF-FM marine band radio.

    Dated: June 3, 2022.
S.C. Stevens,
Captain, U.S. Coast Guard, Captain of the Port Virginia.
[FR Doc. 2022-12408 Filed 6-8-22; 8:45 am]
BILLING CODE 9110-04-P