[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Rules and Regulations]
[Pages 40713-40715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13269]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2023-0524]
RIN 1625-AA00


Safety Zone; Atlantic Ocean, Virginia Beach, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all navigable waters within 200-yards of the Virginia Beach oceanfront. 
The safety zone is needed to protect mariners from the potential 
hazards which would result if a large congregation of spectator vessels 
anchors in close proximity to a shoreside concert on the Virginia Beach 
oceanfront. Entry of vessels or persons into this zone when it is 
subject to enforcement is prohibited unless

[[Page 40714]]

specifically authorized by the Captain of the Port, Sector Virginia, or 
their designated representative. Vessels within the zone must leave the 
zone before any period of enforcement begins.

DATES: This rule is effective June 23, 2023, through June 25, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0524 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 about 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

    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 because the safety zone is needed for a 
shoreside concert and immediate action is needed to protect mariners 
from the potential safety hazards which could result if a large 
congregation of vessels anchors in the vicinity of the concert, 
creating unsafe conditions near the Virginia Beach oceanfront. It is 
impracticable to publish an NPRM because we must establish this safety 
zone by June 23, 2023.
    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 
protect mariners from the potential safety hazards associated with 
vessels congregating at the Virginia Beach oceanfront.

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 a shoreside concert starting 
June 23, 2023, will be a safety concern for anyone within 200-yards of 
the beach. This rule is needed to protect mariners, vessels, and the 
marine environment in the navigable waters within the safety zone 
during the 3-day concert.

IV. Discussion of the Rule

    This rule establishes a safety zone which will be subject to 
enforcement from 11 a.m. until midnight, each day from June 23-25, 
2023. The safety zone will cover all navigable waters within 200 yards 
of the Virginia Beach oceanfront shoreline bounded by the following 
positions: 36[deg]49'49.20'' N, 075[deg]58'04.54'' W; 36[deg]49'49.3'' 
N, 075[deg]57'58.5'' W; 36[deg]50'13.2'' N, 075[deg]58'5.4'' W; 
36[deg]50'13.2'' N, 075[deg]58'12.6'' W. The duration of the zone is 
intended to protect mariners, vessels, and the marine environment in 
these navigable waters during the 3-day concert. 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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
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 
will be able to safely transit around this safety zone which will 
impact a small, designated area of the Atlantic Ocean in an area where 
vessel traffic is normally low. 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 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 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).

[[Page 40715]]

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 that will prohibit entry within 200 yards of the Virginia 
Beach oceanfront shoreline. 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.

    Accordingly, 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.T05-0524 to read as follows:


Sec.  165.T05-0524  Safety Zone; Atlantic Ocean, Virginia Beach, VA.

    (a) Location. The following area is a safety zone: All waters of 
the Virginia Beach oceanfront, from surface to bottom, encompassed by a 
line connecting the following points: 36[deg]49'49.20'' N, 
075[deg]58'04.54'' W; 36[deg]49'49.3'' N, 075[deg]57'58.5'' W; 
36[deg]50'13.2'' N, 075[deg]58'5.4'' W; 36[deg]50'13.2'' N, 
075[deg]58'12.6'' W. These coordinates are based on WGS 84 coordinates.
    (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. The term also includes Virginia Beach Police Marine Patrol 
to permit passage into or through the safety zone 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, 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. Vessels present must exit the safety 
zone before the start of any period in which it is subject to 
enforcement.
    (2) To seek permission to enter, contact the Virginia Beach Police 
Marine Patrol on VHF-FM Channel 13 or 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[s]. This section will be enforced from 11 
a.m. to midnight each day from June 23-25, 2023.

    Dated: June 15, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2023-13269 Filed 6-21-23; 8:45 am]
BILLING CODE 9110-04-P