[Federal Register Volume 88, Number 39 (Tuesday, February 28, 2023)]
[Proposed Rules]
[Pages 12621-12623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03999]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2023-0112]
RIN 1625-AA00


Safety Zone; Back River, Hampton, VA; Air Show

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a safety zone for 
certain waters in the vicinity of the northwest branch of the Back 
River. This action is necessary to provide for the safety of life on 
these navigable waters near Langley Air Force Base, Hampton, VA, during 
an annual airshow. This proposed rulemaking would prohibit persons and 
vessels from entry in the safety zone unless authorized by the Captain 
of the Port 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 March 30, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0112 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, Chief Waterways 
Management Division U.S. Coast Guard; 757-617-7986, 
[email protected].

[[Page 12622]]


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, Purpose, and Legal Basis

    On January 26, 2023, the Joint Base Langley-Eustis Fire Dispatch 
notified the Coast Guard that the 2023 Air Power Over Hampton Roads Air 
Show will be occurring Friday, May 5, 2023, to Sunday, May 7, 2023, 
from 10:00 a.m. to 4 p.m. each day and annually on the third or fourth 
Friday through Sunday in April or the first or second Friday through 
Sunday in May thereafter. The air show includes an aerial performance 
area over a portion of the Back River, where high powered jet aircrafts 
will perform aerobatic maneuvers. The Captain of the Port Virginia 
(COTP) has determined that due to the hazards associated with the air 
show, a safety zone is needed to ensure the safety of vessels on the 
navigable water. 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 a safety zone annually on the 
third or fourth Friday through Sunday in April or the first or second 
Friday through Sunday in May from 10:00 a.m. to 4 p.m. daily to protect 
the public from potential hazards associated with an air show which is 
expected to occur annually. The safety zone would cover all navigable 
waters from the shoreline of the Back River contained within the 
following points: 37[deg]05'34.32'' N, 076[deg]20'47.13'' W; 
37[deg]5'38.05'' N, 076[deg]20'36.49'' W; 37[deg]5'30.53'' N, 
076[deg]20'31.86'' W. The duration of the safety zone is intended to 
ensure the safety of vessels on these navigable waters. No vessel or 
person would be permitted to enter the safety zone 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 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 the size, 
location, duration, and time-of-day of the safety zone. Vessel traffic 
would be able to safely transit around this safety zone which would 
impact a small designated area of the Back River. Moreover, the Coast 
Guard would issue a Broadcast Notice to Mariners via VHF-FM marine 
channel 16 about the zone, and the rule would allow vessels to seek 
permission to enter the zone.

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 zone 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

[[Page 12623]]

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 a safety zone lasting 6 hours, 
each day of the event, that would prohibit entry within a small portion 
of the Back River. 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-2023-0112 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.
    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. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    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 stated in the preamble, the Coast Guard proposes 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.517 to read as follows:


Sec.  165.517  Safety Zone; Back River, Hampton, VA; Air Show

    (a) Location. The following area is a safety zone: all navigable 
waters from the shoreline of the Back River contained within the 
following points: 37[deg]5'34.32'' N, 076[deg]20'47.13'' W; 
37[deg]5'38.05'' N, 076[deg]20'36.49'' W; 37[deg]5'30.53'' N, 
076[deg]20'31.86'' W.
    (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 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 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 annually on 
the third or fourth Friday through Sunday in April or the first or 
second Friday through Sunday in May from 10 a.m. to 4 p.m. each day 
during the event.

    Dated: February 10, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port Virginia.
[FR Doc. 2023-03999 Filed 2-27-23; 8:45 am]
BILLING CODE 9110-04-P