
[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


