
[Federal Register Volume 88, Number 242 (Tuesday, December 19, 2023)]
[Rules and Regulations]
[Pages 87716-87719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27774]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 147

[Docket Number USCG-2023-0073]
RIN 1625-AA00


Safety Zone; South Fork Wind Farm Project Area, Outer Continental 
Shelf, Lease OCS-A 0517, Offshore Rhode Island, Atlantic Ocean

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

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is extending the effective period for the 13 
temporary 500-meter temporary safety zones around the construction of 
12 wind turbine generators (WTGs) and one offshore substation (OSS) 
located in the South Fork Wind Farm (SFWF) project area within Federal 
waters on the Outer Continental Shelf (OCS), specifically, in the 
Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area 
OCS-A 0517, approximately 16 nautical miles (NM) southeast of Block 
Island, Rhode Island, and 30 NM east of Montauk Point, New York. This 
rule extends the effective period of the existing safety zones for an 
additional five months. The safety zones will now end on May 31, 2024. 
This action is necessary to provide for the safety of life, property, 
and the environment during the anticipated construction of each 
facility's monopile type foundation and subsequent installation of the 
WTGs turbines and OSS platform. When enforced, only attending vessels 
and those vessels specifically authorized by the First Coast Guard 
District Commander or a designated representative are permitted to 
enter or remain in the safety zones.

DATES: This temporary interim rule is effective from January 1, 2024, 
through May 31, 2024. Comments and related material must be received by 
the Coast Guard on or before March 18, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0073 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments. To view documents mentioned in 
this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2023-0073 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 
rulemaking, call or email Mr. Craig Lapiejko, Waterways Management, at 
Coast Guard First District, telephone 617-603-8592, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BOEM Bureau of Ocean Energy Management
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
OCS Outer Continental Shelf
OSS Offshore substation
NM Nautical mile
Sec.  Section
SFWF South Fork Wind Farm
U.S.C. United States Code
WTG Wind turbine generator

II. Background, Purpose, and Legal Basis

    On May 2, 2023, the Coast Guard published a temporary final rule 
(TFR) establishing 13 temporary 500-meter safety zones around the 
construction of 12 wind turbine generators (WTGs) and one offshore 
substation (OSS) located in the South Fork Wind Farm (SFWF) project 
area within Federal waters on the Outer Continental Shelf (OCS), 
specifically, in the Bureau of Ocean Energy Management (BOEM) Renewable 
Energy Lease Area OCS-A 0517, approximately 16 nautical miles (NM) 
southeast of Block Island, Rhode Island, and 30 NM east of Montauk 
Point, New York (88 FR 27402).
    The Coast Guard originally published a temporary rule to be 
effective, and enforceable, through December 31, 2023. We are now 
extending it to May 31, 2024, to provide more time for the completion 
of the installation of the wind turbine generator (WTG) structures. 
This rule extends the effective period of the safety zones for five 
months until May 31, 2024.
    The First Coast Guard District Commander has determined that 
extension of the 13 safety zones through rulemaking is warranted to 
ensure the safety of life, property, and the environment within a 500-
meter radius of each of the 13 facilities during their construction.
    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 extending the effective period for the safety zone 
because doing so would be impracticable and contrary to the public 
interest. The Coast Guard did not receive sufficient notice that the 
windfarm construction would not be completed until May 31, 2024, to 
allow time to publish an NPRM, reviewing public comment, and publishing 
a subsequent rule. Providing this prior public notice and opportunity 
to comment is contrary to the public's interest and impracticable 
because doing so could result in a lapse in the safety zone's 
enforceability, and safety concerns with vessels and persons transiting 
too close to the construction efforts. Immediate action is needed to 
protect persons and property from the potential dangers associated with 
the construction.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this temporary interim rule effective less than 30 
days after publication in the Federal Register. The current temporary 
final rule around the windfarm construction ends on December 31, 2023, 
but the construction will be ongoing after that date. Delaying the 
effective date of this temporary interim rule would be contrary to the 
public's interest and impracticable because action is needed starting 
January 1, 2024, to protect persons and vessels from the potential 
safety hazards associated with the ongoing windfarm construction.
    We are soliciting comments on the extension of the enforcement 
period of this safety zone. If the Coast Guard determines that changes 
to the temporary interim rule are necessary, we will publish a 
temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under the authority provided 
in 14 U.S.C. 544, 43 U.S.C. 1333, and Department of Homeland Security

[[Page 87717]]

(DHS) Delegation No. 00170.1, Revision No. 01.3. As an implementing 
regulation of this authority, 33 CFR part 147 permits the establishment 
of safety zones for non-mineral energy resource permanent or temporary 
structures located on the OCS for the purpose of protecting life and 
property on the facilities, appurtenances and attending vessels, and on 
the adjacent waters within the safety zone (see 33 CFR 147.10). 
Accordingly, a safety zone established under 33 CFR part 147 may also 
include provisions to restrict, prevent, or control certain activities, 
including access by vessels or persons to maintain safety of life, 
property, and the environment.

IV. Discussion of Changes and the Rule

    This rule extends the effective period of the 13 temporary 500-
meter safety zones around the construction of 12 WTGs and one OSS on 
the OCS for five additional months until May 31, 2024. When enforced, 
this rule will continue to prohibit unauthorized vessel or person to 
enter the safety zone without obtaining permission from the First Coast 
Guard District Commander or a designated representative. All other 
requirements in the temporary safety zone issued on May 2, 2023 (88 FR 
27402), remain the same.
    If the project is completed before May 31, 2024, enforcement of the 
safety zones will be suspended, and notice given via Local Notice to 
Mariners.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. A summary of our analyses based 
on these statutes and Executive orders follows.

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, the rule 
has not been reviewed by the Office of Management and Budget (OMB).
    Aligning with 33 CFR 147.15, the safety zones established will 
extend to a maximum distance of 500-meters around the OCS facility 
measured from its center point. Vessel traffic will be able to safely 
transit around the safety zones, which will impact a small, designated 
area in the Atlantic Ocean, without significant impediment to their 
overall voyage. These safety zones are necessary to provide for the 
safety of life, property, and the environment during the construction 
of each structure, in accordance with Coast Guard maritime safety 
missions and the First Coast Guard District Commander's finding.

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 zero comments from the Small Business 
Administration on this rulemaking. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule would not have a significant economic 
impact on a substantial number of small entities.
    This rule may affect owners or operators of vessels intending to 
transit or anchor in the SFWF, some of which might be small entities. 
However, these safety zones will not have a significant economic impact 
on a substantial number of these entities because they are temporarily 
enforced, allow for deviation requests, and do not impact vessel 
transit significantly. Regarding the enforcement period, although these 
safety zones will continue to be in effect through May 31, 2024, 
vessels would only be prohibited from the regulated zone during periods 
of actual construction activity in correspondence to the period of 
enforcement. We expect the enforcement period at each location to last 
approximately 48 hours as construction progresses from one structure 
location to the next. Additionally, vessel traffic could pass safely 
around each safety zone using an alternate route. Use of an alternate 
route likely will cause minimal delay for the vessel in reaching their 
destination depending on other traffic in the area and vessel speed. 
Vessels will also be able to request deviation from this rule to 
transit through a safety zone. Such requests will be considered on a 
case by-case basis and may be authorized by the First Coast Guard 
District Commander or a designated representative. For these reasons, 
the Coast Guard expects any impact of this rulemaking establishing a 
temporary safety zone around these OCS facilities to be minimal and 
have no significant economic impact on small entities.
    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 would 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 87718]]

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 potential 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 the 
establishment of a safety zone around an OCS facility to protect life, 
property, and the marine environment. 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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. If we determine that changes to the temporary interim rule are 
necessary, the Coast Guard will publish a temporary final rule or other 
appropriate document. If you submit a comment, please include the 
docket number for this rulemaking, indicate the specific section of 
this document to which each comment applies, and provide a reason for 
each suggestion or recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0073 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
temporary interim rule as being available in the docket, find the 
docket as described in the previous paragraph, and then select 
``Supporting & Related Material'' in the Document Type column. Public 
comments will also be placed in our online docket and can be viewed by 
following instructions on the https://www.regulations.gov Frequently 
Asked Questions web page. Also, if you click on the Dockets tab and 
then the temporary interim rule, you should see a ``Subscribe'' option 
for email alerts. The option will notify you when comments are posted, 
or a subsequent document is published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed rule. We may choose not to post 
off-topic, inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

List of Subjects in 33 CFR Part 147

    Continental shelf, Marine safety, Navigation (waters).
    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 147 as follows:

PART 147--SAFETY ZONES

0
1. The authority citation for part 147 continues to read as follows:

    Authority: 14 U.S.C. 544; 43 U.S.C. 1333; 33 CFR 1.05-1; 
Department of Homeland Security Delegation No. 00170.1, Revision No. 
01.3.

0
2. Add Sec.  147.T01-0073 to read as follows:


Sec.  147.T01-0073  Safety Zones; South Fork Wind Farm Project Area, 
Outer Continental Shelf, Lease OCS-A 0517, Offshore Rhode Island, 
Atlantic Ocean.

    (a) Description. The area within 500-meters of the center point of 
the positions (North American Datum of 1983 (NAD83)) provided in the 
following table is a safety zone:

                                            Table 1 to Paragraph (a)
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                           Name                              Facility type       Latitude          Longitude
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AM05......................................................             WTG      N 41.10879493      W-71.19110374
AM06......................................................             WTG      N 41.10921219      W-71.16906236
AM07......................................................             WTG      N 41.10962524      W-71.14702052
AM08......................................................             WTG      N 41.11003408      W-71.12497822
AN05......................................................             WTG      N 41.09212418      W-71.19054951
AN06......................................................             WTG      N 41.09195639      W-71.16788437
AN08......................................................             WTG      N 41.09336261      W-71.12444068
AN09......................................................             WTG        N 41.093767       W-71.1024035
AP05......................................................             WTG      N 41.07545338      W-71.18999573
AP06......................................................             OSS      N 41.07587016      W-71.16796548
AP07......................................................             WTG      N 41.07628273      W-71.14593476
AP08......................................................             WTG      N 41.07669109      W-71.12390359
AP09......................................................             WTG      N 41.07709524      W-71.10187197
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    (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

[[Page 87719]]

Federal, State, and local officer designated by or assisting the First 
Coast Guard District Commander in the enforcement of the safety zones.
    (c) Regulations. No vessel may enter or remain in the safety zone 
in paragraph (a) of this section except for the following:
    (1) An attending vessel as defined in Sec.  147.20; and
    (2) A vessel authorized by the First Coast Guard District Commander 
or a designated representative.
    (d) Request for permission. Persons or vessels seeking to enter the 
safety zone must request authorization from the First Coast Guard 
District Commander or a designated representative. If permission is 
granted, all persons and vessels must comply with lawful instructions 
of the First Coast Guard District Commander or designated 
representative via VHF-FM channel 16 or by phone at 866-842-1560 (First 
Coast Guard District Command Center).
    (e) Effective and enforcement periods. This section is effective 
from January 1, 2024, through 11:59 p.m. on May 31, 2024. But it will 
only be enforced during active construction or other instances which 
may cause a hazard to navigation deemed necessary by the First Coast 
Guard District Commander. The First Coast Guard District Commander will 
make notification of the exact dates and times in advance of each 
enforcement period for the locations in paragraph (a) of this section 
to the local maritime community through the Local Notice to Mariners 
and will issue a Broadcast Notice to Mariners via marine channel 16 
(VHF-FM) as soon as practicable in response to an emergency. If the 
project is completed before May 31, 2024, enforcement of the safety 
zones will be suspended, and notice given via Local Notice to Mariners. 
The First Coast Guard District Local Notice to Mariners can be found 
at: https://www.navcen.uscg.gov.

    Dated: December 13, 2023.
J.W. Mauger,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2023-27774 Filed 12-18-23; 8:45 am]
BILLING CODE 9110-04-P


