[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76667-76669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24555]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0862]
RIN 1625-AA00
Safety Zone; Atlantic Ocean, Virginia Beach, Virginia
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for
navigable waters within a 550-yard radius of the M/V HOS MYSTIQUE and
accompanying machinery while the vessel is conducting a subsea survey
for potential unexploded ordinance (pUXO) in the Atlantic Ocean within
three nautical miles of the shores of the State Military Reservation,
Virginia Beach. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards created by
the subsea survey operations. Entry of vessels or persons into this
zone is prohibited unless specifically authorized by the Captain of the
Port, Sector Virgina or designated representative.
DATES: This rule is effective without actual notice from November 7,
2023 through December 31, 2023. For the purposes of enforcement, actual
notice will be used from November 1, 2023, until November 7, 2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0862 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
pUXO Potential Unexploded Ordinance
ROV Remotely Operated Vehicle
Sec. Section
TFR Temporary Final Rule
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)
because Coast Guard Sector Virginia was notified on October 25, 2023
that the M/V HOS MYSTIQUE will conduct survey operations using an ROV
to identify pUXOs beginning November 1, 2023 and a safety zone is
necessary to protect the public from the safety hazards associated with
any disturbances of pUXOs, as well as, the obstruction to navigation
during the use of a tethered ROV. It is impracticable to publish an
NPRM because we must establish this safety zone by November 1, 2023, to
protect the public.
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 survey
operations utilizing ROVs in shallow water to identify pUXO.
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 survey operations starting
November 1, 2023, and continuing until late December, will be a safety
concern for any persons or property within a 550-yard radius of the
survey vessel. This rule is needed to protect personnel, vessels, and
the marine environment in the navigable waters within the safety zone
from potential hazards that arise from disturbing pUXOs and the use of
tethered ROVs to identify them.
IV. Discussion of the Rule
This rule establishes a safety zone on November 1, 2023, through
December 31, 2023. The safety zone encompasses all waters inside a
radius of 550 yards from the actual position of the M/V HOS MYSTIQUE.
During survey operations, a
[[Page 76668]]
tethered ROV will be used and contained within the safety zone. Two
Rigid Hull Inflatable Boats (RHIBs) will operate as safety vessels
during operations, one to the north and one to the south of each target
while the ROV is deployed. The duration of the zone is intended to
protect personnel, vessels, and the marine environment in these
navigable waters during survey operations. No vessel or person will be
permitted to enter the safety zone without obtaining permission from
the COTP or 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 operations requirements of the survey requiring
the safety zone. Vessel traffic will be able to safely transit around
this safety zone during the survey. The date range for this survey was
selected to minimize vessel traffic impacts. 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 while survey operations are not actively conducting
operations with the potential for hazards.
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).
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 prohibits entry within 550 yards of the M/V M/V HOS
MYSTIQUE only during the active survey operations which will take place
in November and December of 2023. 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, Security measures, and waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
[[Page 76669]]
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.T05-0862 to read as follows:
Sec. 165.T05-0862 Safety Zone; Atlantic Ocean, Virginia Beach, VA.
(a) Location. The following area is a safety zone: All waters of
the Atlantic Ocean, from surface to bottom, described by a radius of
550 yards from the actual position of the M/V HOS MYSTIQUE while survey
operations are being conducted.
(b) Definitions. As used in this section, designated representative
means 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 the M/V HOS
MYSTIQUE for the sole purpose of designating and establishing safe
transit corridors, to permit passage into or through these safety
zones, 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, vessels 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, vessels should contact the M/V HOS
MYSTIQUE by VHF-FM Channel 16. Those in the safety zone must comply
with all directions given to them by the COTP or the COTP's designated
representative.
(d) Enforcement period. This zone will be in effect and enforced
during such times as are announced via Broadcast Notice to Mariners
between November 1, 2023, through December 31, 2023.
Dated: November 1, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port Sector Virginia.
[FR Doc. 2023-24555 Filed 11-6-23; 8:45 am]
BILLING CODE 9110-04-P