[Federal Register Volume 89, Number 18 (Friday, January 26, 2024)]
[Rules and Regulations]
[Pages 5095-5097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01548]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0081]
RIN 1625-AA00


Safety Zone; Atlantic Ocean, Virginia Beach, Virginia

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

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 1,000-yard radius of the M/V HOS WARLAND, HOS 
INNOVATOR, and, or HOS MYSTIQUE. Operations are planned to relocate 
unexploded ordinance (UXO) in the Atlantic Ocean, within 12 miles of 
the shores of the State Military Reservation, in Virginia Beach, 
Virginia. The safety zone is needed to protect personnel, vessels, and 
the marine environment from potential hazards created by these 
operations. Entry of vessels or persons into this zone is prohibited 
unless specifically authorized by the Captain of the Port, Sector 
Virgina or a designated representative.

DATES: This rule is effective and subject to enforcement without actual 
notice from January 26, 2024 through July 1, 2024. For the purposes of 
enforcement, actual notice will be used from February 1, 2024, until 
January 26, 2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0081in 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 in 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 first 
notified on January 9th, 2024, that operations using a Remotely 
Operated Vehicle (ROV) to shift UXOs would begin in early February, 
2024. There is insufficient time to publish an NPRM, consider any 
comments submitted in response thereto, and publish the final safety 
zone by February 1, 2024, when the public will need to have notice of 
it.
    In addition, 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 
operations utilizing ROVs to relocate UXO.

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 UXO operations starting on 
or about February 1, 2024, and continuing into July 2024, will be a 
safety concern for any persons or property within the operating area 
discussed below. 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 UXOs and the use of 
tethered ROVs for relocation.

IV. Discussion of the Rule

    This rule establishes a safety zone on February 1, 2024, through 
July 1, 2024. The safety zone encompasses all waters within a 1,000-
yard radius from the M/V HOS WARLAND, HOS INNOVATOR, and, or HOS 
MYSTIQUE when

[[Page 5096]]

operating within the territorial seas offshore from Virginia State 
Military Reservation. The safety zone will only be enforced during 
active UXO relocation operations inside those boundaries. To 
communicate active disposition activities, project vessels will 
broadcast ``Securitae'' calls prior to and periodically during the 
operations. A tethered ROV will be used in conjunction with two small 
craft and Dynamic Positioning Vessels (DPV) operating within the safety 
zone. The zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters during disposition 
activities. 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 operations. Moreover, the Coast Guard would 
issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 when 
the zone is being enforced.

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 a prescribed zone only during 
the active survey operations which will take place between February and 
July 2024. 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 5097]]

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.T05-0081 to read as follows:


Sec.  165.T05-0081  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, encompassed by a radius of 
1,000 yards from the actual position of the M/V HOS WARLAND, HOS 
INNOVATOR, and, or HOS MYSTIQUE while relocation operations are being 
conducted within the boundaries of a perimeter defined by the following 
points: 36[deg]49'4.8'' N 75[deg]57'43.2'' W; 36[deg]49'13.9'' N 
75[deg]42'39.8'' W; 36[deg]47'11.7'' N, 75[deg]41'50.8'' W and 
36[deg]48'28.8'' N 75[deg]57'43.2'' W.
    (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 
WARLAND, HOS INNOVATOR and 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 
WARLAND, HOS INNOVATOR, and, or 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 from February 
1, 2024, through July 1, 2024 and enforced during such times as are 
announced via Broadcast Notice to Mariners between.

    Dated: January 22, 2024.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port Sector Virginia.
[FR Doc. 2024-01548 Filed 1-25-24; 8:45 am]
BILLING CODE 9110-04-P