[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Rules and Regulations]
[Pages 76233-76235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29850]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2014-1032]
RIN 1625-AA00
Safety Zone, Elizabeth River; Portsmouth, VA
AGENCY: Coast Guard, DHS.
ACTION: Temporary Final Rule.
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SUMMARY: The Coast Guard is establishing a safety zone on the navigable
waters of the Elizabeth River in Portsmouth, VA for 10 periods of 48
hours beginning at midnight on February 18, February 23, February 26,
March 3, March 9, April 20, April 23, April 27, April 30, and May 11,
2015. This action will restrict vessel traffic movement in the
designated area during construction of the new Midtown Tunnel. This
action is necessary to protect the life and property of the maritime
public due to the number of work vessels in the designated area and
their lack of maneuverability while engaged in construction operations.
DATES: This rule is effective from December 22, 2014 through May 11,
2015, and will be enforced for 10 periods of 48 hours in length,
beginning at midnight on February 18, February 23, February 26, March
3, March 9, April 20, April 23, April 27, April 30, and May 11, 2015.
ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2014-1032]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LCDR Gregory Knoll, Waterways Management Division Chief,
Sector Hampton Roads, Coast Guard; telephone (757) 668-5580, email
[email protected]. If you have questions on viewing or
submitting material to the docket, call Cheryl Collins, Program
Manager, Docket Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
A. Regulatory History and Information
SKW Constructors are building a second span for the Midtown Tunnel
between Portsmouth and Norfolk, VA and will be conducting operations
that require closures of the federal channel beginning in February
2015. A Notice of Proposed Rulemaking (NPRM) was published on August
25, 2014 in the Federal Register (79 FR 50571).
The Coast Guard received one comment on the NPRM, which is
addressed below in Section C. No request for a public meeting was
received, and no meeting was held.
The original Temporary Final Rule, docket number [USCG-2014-0693]
was published on November 12, 2014 in the Federal Register (79 FR
67063). Due to unforeseen construction delays, the channel closure
dates had to be shifted back, prompting the issuance of the instant
Temporary Final Rule.
B. Basis and Purpose
The legal basis for the rule is the Coast Guard's authority to
establish regulated navigation areas and other limited access areas: 33
U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33
CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064;
Department of Homeland Security Delegation No. 0170.1.
Due to increased vehicle traffic in the Hampton Roads area, SKW
Constructors, in concert with Elizabeth River Crossings and the
Virginia Department of Transportation, is constructing a second tunnel
parallel to the existing Midtown Tunnel between Portsmouth and Norfolk,
VA. The construction will involve submerging elements of the new
Midtown Tunnel. The presence of working vessels and the inability to
maneuver submerged equipment necessitate closures of the federal
channel. The closures will be in effect for 10 48-hour periods to allow
SKW Constructors to install the segments of the tunnel that overlap the
federal channel.
The Coast Guard is establishing a safety zone in the portion of the
[[Page 76234]]
Elizabeth River between Elizabeth River Channel Buoy 31 (LLNR 9835) and
Elizabeth River Channel Buoy 34 (LLNR 9855). The first of the 10
scheduled closures will begin at midnight on February 18, 2015; the
final scheduled closure will begin at midnight on May 11, 2015. The
dates and hours are subject to change due to weather, scheduling
conflicts, equipment failure and other unforeseen factors. Any further
changes to these dates will be listed in the Federal Register if time
permits, and in all cases will be communicated via marine information
broadcasts.
C. Discussion of Comments, Changes, and the Final Rule
The Coast Guard received one comment expressing concern about the
lengths of the closures and the economic impact on business operations.
The comment also requested a working group of industry members and the
Coast Guard to determine the potential impact of the closures. No
formal working group was assigned, but the Coast Guard and SKW
participated in extensive dialogues over several years with a wide
range of port partners and interested parties including, but not
limited to, the Virginia Maritime Association, Virginia Pilots
Association, Association of Virginia Docking Pilots, Independent
Docking Pilots, and U.S. Navy. In addition to being discussed at
meetings exclusively pertaining to the Midtown Tunnel, the topic has
been on the agenda at multiple Area Maritime Security Committee and
Maritime Transportation System Planning Subcommittee meetings, at which
port partners, including industry representatives, were afforded the
opportunity to discuss the potential impact of the closures.
The decision to close the channel for 10 periods of 48 hours in
length comes as a result of these extensive and widespread discussions,
which have been occurring since the earliest proposals for the project
in 2007. Every effort has been made to reduce the length of time the
channel is closed and any adverse impacts resulting therefrom. Based on
these efforts, it was determined that 10 closures of 48 hours in length
constitutes the best available means to complete the project. Further,
10 separate closures, rather than one extended closure, will enable SKW
to complete the work while enabling traffic to flow between the closure
periods, making it the least burdensome and best available plan.
The NPRM published on August 25, 2014 stated that the first channel
closure would begin on January 1, 2015. The first closure will actually
begin on February 18, 2015 at midnight. This change is reflected in the
instant Final Rule.
The Captain of the Port of Hampton Roads is establishing a safety
zone in the portion of the Elizabeth River between Elizabeth River
Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel Buoy 34 (LLNR
9855). The zone will be effective for 10 periods of 48 hours in length,
with each respective period beginning at midnight on February 18,
February 23, February 26, March 3, March 9, April 20, April 23, April
27, April 30, and May 11, 2015. The dates and hours are subject to
further change due to weather, scheduling conflicts, equipment failure
and other unforeseen factors. Any further changes to these dates will
be listed in the Federal Register if time permits, and in all cases
will be communicated via marine information broadcasts. No person or
vessel may enter or remain in the regulated area unless authorized by
the Captain of the Port, Hampton Roads or his designated
Representative.
D. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on these statutes or executive orders.
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those orders. Although this regulation
restricts access to the safety zone, the effect of this rule will not
be significant because: (i) The safety zone will be in effect for a
limited duration; (ii) the zone is of limited size; and (iii) the Coast
Guard will make notifications via maritime advisories so mariners can
adjust their plans accordingly.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 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. The rule may affect the following entities, some of
which might be small entities: The owners or operators of vessels
intending to transit or anchor in the specified portion of the
Elizabeth River during the specified dates and times.
This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: (i) The
safety zone will only be in place for a limited duration; and (ii)
before the enforcement period, maritime advisories will be issued
allowing mariners to adjust their plans accordingly.
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 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
contact the person listed in the FOR FURTHER INFORMATION CONTACT,
above. 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.
4. 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).
5. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of
[[Page 76235]]
compliance on them. We have analyzed this rule under that Order and
have determined that it does not have implications for federalism.
6. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INTFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.
7. 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.
8. Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
9. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
10. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
11. Indian Tribal Governments
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.
12. Energy Effects
This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.
13. Technical Standards
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
14. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
This rule involves establishing a safety zone. This rule is
categorically excluded from further review under paragraph (34)(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Categorical Exclusion
Determination are available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, 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: 33 U.S.C. 1231; 46 U.S.C. Chapter 701; 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. Add Sec. 165.T05-1032 to read as follows:
Sec. 165.T05-1032 Safety Zone, Elizabeth River; Portsmouth, VA.
(a) Definitions. For the purposes of this section, Captain of the
Port means the Commander, Sector Hampton Roads. Representative means
any Coast Guard commissioned, warrant or petty officer who has been
authorized to act on the behalf of the Captain of the Port.
(b) Location. The following area is a safety zone: specified waters
of the Captain of the Port Sector Hampton Roads zone, as defined in 33
CFR 3.25-10: The marked channel of the Elizabeth River between
Elizabeth River Channel Buoy 31 (LLNR 9835) and Elizabeth River Channel
Buoy 34 (LLNR 9855).
(c) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into this zone is prohibited unless
authorized by the Captain of the Port, Hampton Roads or his designated
Representative.
(2) The operator of any vessel in the immediate vicinity of this
safety zone shall:
(i) Contact on scene contracting vessels via VHF channel 13 and 16
for passage instructions.
(ii) If on scene proceed as directed by any commissioned, warrant
or petty officer on shore or on board a vessel that is displaying a
U.S. Coast Guard Ensign.
(3) The Captain of the Port, Hampton Roads can be reached through
the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia
at telephone number (757) 668-5555.
(4) The Coast Guard Representatives enforcing the safety zone can
be contacted on VHF-FM marine band radio channel 13 (165.65Mhz) and
channel 16 (156.8 Mhz).
(d) Enforcement period. This section will be enforced for 10
periods of 48 hours in length beginning at midnight on February 18,
February 23, February 26, March 3, March 9, April 20, April 23, April
27, April 30, and May 11, 2015. Any deviations from these times will be
communicated via marine information broadcasts.
Dated: December 8, 2014.
Christopher S. Keane,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 2014-29850 Filed 12-19-14; 8:45 am]
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