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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2024-0136]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, Department of Homeland Security (DHS).

# ACTION:

Temporary final rule.

# 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,                         *Ashley.E.Holm@uscg.mil.*

# 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

§ 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°48′57.6″ N 75°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                           ( print 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

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.

2. Add § 165.T05-0136 to read as follows: 

      ( print page 13276)    
§ 165.T05-0136

                            (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°48′57.6″ N 75°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