[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Rules and Regulations]
[Pages 13274-13276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03590]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0136]
RIN 1625-AA00


Safety Zone, Installation Area for Offshore Wind Power 
Transmission Export Cables, 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 550-yards of a near shore construction site 
near the State Military Reservation, in Virginia Beach, Virginia. The 
safety zone will protect personnel, vessels, and the marine environment 
from potential hazards created by subsurface construction. Operations 
are planned to bore tunnels to carry electric transmission lines below 
the Atlantic Ocean. When the M/V RAM XII or the M/V RAM XV are present, 
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 from March 1, 2024 through December 31, 
2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0136 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

COTP Captain of the Port, Sector Virginia
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 February 6, 2024, the Virginia Electric and Power Company, doing 
business as Dominion Energy, notified the Coast Guard that they plan to 
begin tunneling work east of the State Military Reservation in Virginia 
Beach, Virginia in the first week of March 2024, specifically in waters 
within one half mile of the shoreline. The work involves the use of 
dynamic positioning for tunnel placement, excavation equipment, divers 
in shallow water, and the coordination of approximately seven vessels.
    The Coast Guard is issuing this temporary rule under authority in 5 
U.S.C. 553(b)(B). This statutory 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. 
The Coast Guard finds that good cause exists for not publishing a 
notice of proposed rulemaking (NPRM) with respect to this rule because 
publishing notice, and receiving, considering and responding to 
comments between now and March 1, 2024, when the safety zone must be in 
effect, is impracticable.
    Also, 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 there are less than 30 days 
remaining before March 1, when the safety zone must be in place to 
serve its purpose.

III. Legal Authority and Need for Rule

    The Captain of the Port, Sector Virginia (COTP) has determined that 
potential hazards associated with the construction of subsurface 
tunnels will create a safety concern that necessitates prohibiting 
vessels approaching the subsea tunneling site. This rule is needed to 
protect personnel, vessels, and the marine environment in the navigable 
waters within the safety zone while the tunneling operations are 
conducted. The Coast Guard is issuing this rule under authority in 46 
U.S.C. 70034.

IV. Discussion of the Rule

    This rule establishes a safety zone from March 1, 2024, until 
December 31, 2024, during which Dominion Energy will be tunneling to 
lay electric transmission lines below the Atlantic Ocean. The safety 
zone will cover all navigable waters within 550 yards of the position 
36[deg]48'57.6'' N 75[deg]57'43.2'' W, a distance selected to encompass 
all vessels and machinery being used by personnel to conduct tunneling 
operations. Consistent with its purpose of protecting personnel, 
vessels, and the marine environment in these navigable waters while the 
tunneling operations are conducted, the zone will only be subject to 
enforcement when such vessels are present. During subsurface 
construction operations, 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

[[Page 13275]]

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 a formal 
navigational risk assessment, as required by the project permitting 
process which preceded the request to the Coast Guard. This study 
considered the vessels using the area. The use of unrestricted waters 
to the east of the working site would allow vessels normally transiting 
this location access to the other side in less than an hour detour. The 
zone itself is not unique to the coastal environment and exclusion of 
vessels from these waters would not harm the human environment, as the 
shoreline is already a military reserve with restricted access to the 
public. 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).

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 enforceable only during working periods that will prohibit 
entry within 550 yards of a tunneling site, during the months of March 
through December of 2024. It is categorically excluded from further 
review under paragraph L[60a] 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:

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.T05-0136 to read as follows:

[[Page 13276]]

Sec.  165.T05-0136   Safety Zone, Installation Area for Offshore Wind 
Power Transmission Export Cables, Atlantic Ocean, Virginia Beach, 
Virginia.

    (a) Location. The following area is a safety zone: All waters 
within 550 yards of the center point of the installation site at 
position 36[deg]48'57.6'' N 75[deg]57'43.2'' W to include the shoreline 
within the radius. These coordinates are based on WGS 84.
    (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 masters of 
the Lift Boats RAM XII and/or RAM XV, 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, no vessels or persons may 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 Lift 
Boats RAM XII and/or RAM XV via 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 for the purposes of 
instructions for safe transit.
    (d) Enforcement period. This zone will be in effect and subject to 
enforcement during such times as the Lift Boats RAM XII and/or RAM XV 
is present within the zone, between March 1, 2024, and December 31, 
2024.

    Dated: February 14, 2024.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port Sector Virginia.
[FR Doc. 2024-03590 Filed 2-21-24; 8:45 am]
BILLING CODE 9110-04-P