Special Local Regulation; Elizabeth River, Norfolk Harbor, Norfolk, VA

Special Local Regulation; Elizabeth River, Norfolk Harbor, Norfolk, VA

Supplementary Information

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

PATCOM Patrol Commander

§ Section

SLR Special Local Regulation

U.S.C. United States Code

II. Background Information and Regulatory History

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, unnecessary, or contrary to the public interest." The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because it would be impracticable to publish an NPRM, consider comments, and publish a final rule before this rule needs to be in place to serve its purpose. This rule is necessary to accommodate the number of vessels expected to participate in the boat parade.

The marine event sponsor of a boat parade is expecting to draw a high concentration of vessels to the Hampton Roads Harbor area along the proposed parade route. Traditionally, the Hampton Roads Harbor area serves as a major thoroughfare for commercial traffic, naval operations, ferry routes, and several other recreational uses through the connecting waters of the James River, Elizabeth River, and Lower Chesapeake Bay. The Coast Guard is establishing a Special Local Regulation (SLR) to monitor the parade before, during, and after the event to minimize impacts on this congested waterway. We must promulgate this rule by September 14, 2024, to ensure the safety of individuals, property, and the marine environment.

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 prompt action is needed to respond to the potentially significant increase in vessel traffic not local to the area and to the risks associated with large congregations of vessels navigating unfamiliar waters.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. Captains of the Port are authorized by 33 CFR 100.35 to issue SLRs. The Captain of the Port (COTP), Sector Virginia has determined that potential hazards associated with the proposed parade starting September 14, 2024, will be a safety concern for anyone within the vicinity of the parade route. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the SLR during the enforcement period of this rule.

IV. Discussion of the Rule

This rule establishes an SLR from noon until 4 p.m. on September 14, 2024. The SLR will cover all navigable waters within the Elizabeth River from shoreline to shoreline beginning in the vicinity of the Craney Island Flats proceeding south through the Norfolk Harbor Reaches and ending at the Waterside District in Norfolk, Virginia, to promote safety along the "Mid-Atlantic Trump Boat Parade" route. The southern boundaries of the SLR are bound by the following fixed structures; all waters north of the I-264 Norfolk/Portsmouth (Downtown Tunnel), east of the West Norfolk Bridge and west of the Berkley Bridge. This SLR will also temporarily establish the southern area of Anchorage N (Hospital Point) as a First Amendment area, where people may lawfully assemble and convey their message in a safe manner to their intended audience, to be used at the discretion of the Coast Guard Patrol Commander (PATCOM) as a spectator area.

The duration of the SLR has been tailored to protect personnel, vessels, and the marine environment in these navigable waters when the parade is scheduled to occur, while minimizing the burden on routine vessel traffic. Vessels or persons entering the SLR during the enforcement period are subject to the direction and control of the on-scene PATCOM, as designated and specifically authorized by the Captain of the Port, Virginia.

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 two considerations. The special local regulation will be enforced for only four hours on one day. Also, persons and vessels may still enter, transit through, anchor in, or remain within the regulated area or anchor in the spectator area, during the enforcement period if authorized by the COTP Virginia or a designated representative, who will be onsite to direct the movement of vessels such that unsafe conditions are avoided but will otherwise not interfere with commercial vessels or normal traffic in the area.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, does not apply to rules not subject to notice and comment. As the Coast Guard has, for good cause, waived notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's provisions do not apply here.

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 This rule involves an SLR lasting only 6 hours that will monitor entry to the SLR for the duration of the enforcement period to cover before, during and after the parade has concluded. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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. All non-participant vessels or persons engaged in protest activity will be directed to the southern part of Anchorage N (Hospital Point) if they wish to remain in the regulated area.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Part 100 Safety of Life on Navigable Waters