[Federal Register Volume 87, Number 165 (Friday, August 26, 2022)]
[Rules and Regulations]
[Pages 52467-52469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18360]


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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, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 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 regulation prohibits 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.

DATES: This rule is effective from September 26, 2022, through January 
31, 2027.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0915 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) 668-5581; Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CBBT Cheasapeake Bay Bridge Tunnel

[[Page 52468]]

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 Information and Regulatory History

    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. In 
response, on April 8, 2022, the Coast Guard published a notice of 
proposed rulemaking (NPRM) titled ``Safety Zones for Parallel Thimble 
Shoal Tunnel Project on the Chesapeake Bay Bridge Tunnel; Chesapeake 
Bay, VA'' (87 FR 20796). There we stated why we issued the NPRM, and 
invited comments on our proposed regulatory action related to the 
bridge construction. During the comment period that ended May 23, 2022, 
we received no comments.

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 that potential hazards associated with the bridge 
tunnel construction project will be a safety concern for anyone within 
a 500-feet in all direction from the edge of both South Thimble Island 
and North Thimble Island. The purpose of this rule is to ensure safety 
of vessels and the navigable waters in the safety zone at all times 
while construction equipment is present.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published April 
8, 2022. There are no changes in the regulatory text of this rule from 
the proposed rule in the NPRM.
    This rule establishes two temporary safety zones extending 500 feet 
in all directions from the edge of both South Thimble Island and North 
Thimble Island. 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 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 received no comments from the Small Business 
Administration on this rulemaking. 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

[[Page 52469]]

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 the 
establishment of safety zones to protect the public from hazards 
created by ongoing construction work. It is categorically excluded from 
further review under paragraph L60a of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 1. A 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.

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.T05-0915 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 the safety zones listed in paragraph (a) of this 
section, 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: August 19, 2022.
Jennifer A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port Virginia.
[FR Doc. 2022-18360 Filed 8-25-22; 8:45 am]
BILLING CODE 9110-04-P