[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Rules and Regulations]
[Pages 20772-20774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07365]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0112]
RIN 1625-AA00


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

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

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing 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 rulemaking would prohibit persons and vessels from 
entry in the safety zone unless authorized by the Captain of the Port 
Sector Virginia or a designated representative.

DATES: This rule is effective April 17, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0112 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, Chief Waterways Management Division 
U.S. Coast Guard; 757-617-7986, [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 26, 2023, the Joint Base Langley-Eustis Fire Dispatch 
notified

[[Page 20773]]

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. In response, on February 28, 2023, the Coast 
Guard published a notice of proposed rulemaking (NPRM) titled ``Safety 
Zone; Back River, Hampton, VA; Air Show'' (88 FR 12621). There we 
stated why we issued the NPRM, and invited comments on our proposed 
regulatory action related to this air show. During the comment period 
that ended March 30, 2023, we received no comments.
    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 because immediate action is needed to 
respond to the potential safety hazards associated with the air show.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Sector Virginia (COTP) has determined 
that potential hazards associated with the air show will be a safety 
concern for anyone 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 purpose of this rule is 
to ensure safety of vessels on the navigable waters in the vicinity of 
the safety zone, before, during, and after the scheduled event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published 
February 28, 2023. The only changes in the regulatory text of this rule 
from the proposed rule in the NPRM were to clarify that the prohibition 
against entry to the safety zone when it is subject to enforcement and 
that vessels may not be present in the safety zone when an enforcement 
period begins.
    This rule establishes a safety zone from 10 a.m. to 4 p.m. daily on 
the third or fourth Friday through Sunday in April or the first or 
second Friday through Sunday in May. The safety zone will 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 zone is intended to ensure 
the safety of vessels on the navigable waters in the vicinity of the 
safety zone, before, during, and after the air show. 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 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 will issue a Broadcast Notice to Mariners via VHF-FM marine 
channel 16 about the zone, and the rule will allow vessels to seek 
permission from the COTP 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 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 
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

[[Page 20774]]

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 6 hours, each day of the event, that would prohibit 
entry within a small portion of the Back River. It is 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 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, 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 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 be present in, or enter the safety 
zone described in paragraph (a) of this section when it is subject to 
enforcement 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: April 3, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2023-07365 Filed 4-6-23; 8:45 am]
BILLING CODE 9110-04-P