SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BOEM Bureau of Ocean Energy Management

CFR Code of Federal Regulations

CVOWCWF Coastal Virginia Offshore Wind—Commercial Wind Farm

DMS Degrees Minutes Seconds

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

OCS Outer Continental Shelf

OSS Offshore Substation

WGS 84 World Geodetic System 84

NM Nautical Mile

§ Section

U.S.C. United States Code

WTG Wind Turbine Generator

II. 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 (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 Outer Continental Shelf (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.

The construction of these OCS facilities is inherently complex because of their location offshore. This complexity creates many unusually hazardous conditions, giving rise to the need for safety zones. Among these unusually hazardous conditions are those presented by hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations giving rise to the risk that debris will fall, increased vessel traffic in support of construction, and the presence of stationary barges in close proximity to the facilities and to each other.

III. Background Information and Regulatory History

On December 13, 2023, the Virginia Electric and Power Company, doing business as Dominion Energy, notified the Coast Guard that they plan to begin construction of facilities in the Coastal Virginia Offshore Wind—Commercial Wind Farm (CVOWCWF) project area within Federal waters on the OCS, specifically in the Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area OCS-A 0483, approximately 23 nautical miles (NM) east-northeast of Virginia Beach, Virginia.

After determining that establishment of safety zones was necessary to provide for the safety of life, property, and the environment during the anticipated construction of the structures, on January 26, 2024, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Coastal Virginia Offshore Wind—Commercial Wind Farm Project Area, Outer Continental Shelf, Lease OCS-A 0483, Offshore Virginia, Atlantic Ocean” (89 FR 5136). There we explained the basis for the NPRM and invited comments on our proposed regulatory action related to the establishment of safety zones around the construction of 176 WTGs and three Offshore Substations (OSS's) located in the CVOWCWF project area. In total, two comments were received during the comment period that ended February 26, 2024.

IV. Discussion of Comments, Changes, and the Rule

As noted above, the Coast Guard received two public comments on our NPRM published January 26, 2024. Both commenters generally supported the proposed rule.

One commenter provided notice that three WTG positions were not included in the list of positions on pages 5137-5137 and 5142-5144. The Coast Guard agrees that three WTG positions were missing from the list of positions in the NPRM. The list of positions in the temporary final rule has been updated to include the previously missing WTG positions.

The other commenter offered two additional recommendations for the Coast Guard to consider. First, the commenter recommended we extend the safety zones 500-meters from the outer perimeter of attending vessels in the construction area (vice from the center point of the construction site). Although the Coast Guard could maximize the area of the safety zone by using our authorities in 33 CFR part 147 to do so, we believe that using a 500-meter zone from the center point of construction as a fixed geographic position is most appropriate for this particular offshore construction project. Using the center point of construction to base the location of the safety zone ensures there is a balance between ensuring safety and reducing impacts on vessel transit.

Second, the commenter recommended we expand the definition of “designated representative” to include one or more appropriate members of the CVOWCWF project team, in order to effectively enforce a safety zone, maintain navigation safety and reduce demand on Coast Guard resources. The Coast Guard believes that the definition of “designated representative,” as cited in our proposed rule, should be retained. Based on the particular details of this offshore construction project, including the short duration of the enforcement period (approximately 48 hours during active construction), the more distant ( printed page 20852) offshore location which sees less vessel traffic, and the types of large vessels that are most likely to navigate in the vicinity of the safety zones (commercial shipping, fishing, and tugs with tows), the Coast Guard finds no compelling need to broaden the categories of people who qualify for representative designation or the authority to permit passage through and around the enforced safety zone. Limiting the designation to Coast Guard Patrol Commander, including 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 Fifth Coast Guard District Commander in the enforcement of the safety zones will ensure consistent application of the term.

After considering the comments discussed above, the Coast Guard has determined that there are three changes to the regulatory text of this rule from the proposed rule in the NPRM. Specifically, we corrected the list of positions by adding the three WTG positions that were missing in the NPRM.

This rule establishes 179 temporary, 500-meter safety zones around the construction sites of 176 WTGs and three OSSs on the OCS from May 1, 2024, through 11:59 p.m. on May 1, 2027.

Each of the 179 temporary safety zones will be enforced individually, for a period lasting approximately 48 hours, as construction progresses from the location of one structure to the location of the next. The Coast Guard will provide notice of each enforcement period via the Local Notice to Mariners and issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) as soon as practicable in response to an emergency or hazardous condition. The Coast Guard is publishing this rulemaking to be effective, and enforceable, through May 1, 2027, to encompass any construction delays due to weather or other unforeseen circumstances. If the project is completed before May 1, 2027, enforcement of the safety zones will be suspended, and notice given via Local Notice to Mariners. Additional information about the construction process of the CVOWCWF can be found at https://www.boem.gov/​renewable-energy/​state-activities/​CVOW-C.

The 179 temporary 500-meter safety zones around the construction of 176 WTGs and three OSS's are in the CVOWCWF project area, specifically in the BOEM Renewable Energy Lease Area OCS-A-0483 approximately 23 NM east-northeast of Virginia Beach, Virginia, within Federal waters on the OCS.

The positions of each individual safety zone in this rulemaking are referred to using a unique alpha-numeric naming convention.

Consistent with size limitations on OCS safety zones in 33 CFR 147.15, the safety zones will include the area within 500 meters around the center points of the positions provided in the updated table below, in the language of the rule, while each structure is under active construction. The positions are expressed in Degree Minutes Second (DMS) based on World Geodetic System 84 (WGS 84). The positions of the 179 safety zones are shown on the chartlets below. For scaling purposes, the grid spacing is 0.95 x 0.8 NM.

( printed page 20853)

Navigation in the vicinity of the safety zones consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows, and recreational vessels.

When subject to enforcement, no unauthorized vessel or person will be permitted to enter a safety zone without obtaining permission from the Fifth Coast Guard District Commander or a designated representative. Requests for entry into the safety zone will be considered and reviewed on a case-by-case basis. Persons or vessels seeking to enter the safety zone must request authorization from the Fifth Coast Guard District Commander or designated representative via VHF-FM channel 16 or by phone at 757-398-6391 (Fifth Coast Guard District Command Center). If permission is granted, all persons and vessels shall comply with the instructions of the Fifth Coast Guard District Commander or designated representative.

The regulatory text appears at the end of this document.

IV. 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, as amended by Executive Order 14094 (Modernizing Regulatory Review). 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 would extend to a maximum distance of 500-meters around the OCS facility, measured from its center point. Vessel traffic would be able to safely transit around each of the proposed safety zones, which would occupy a small, designated area in the Atlantic Ocean, without significant impediment to their voyage. These safety zones will provide for the safety of life, and the protection of property, and of the environment during the construction of each structure, in accordance with Coast Guard maritime safety missions.

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 will 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 CVOWCWF, 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 will be subject to enforcement only for short, temporary periods, they will allow for deviation requests, and will not be expected to impact vessel transit significantly. Regarding the enforcement period, although these safety zones will be in effect from May 1, 2024, through May 1, 2027, vessels will only be prohibited from entering or remaining in the regulated zone during periods of actual construction activity corresponding 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 throughout the mixed phases. 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 Fifth Coast Guard District Commander or a designated representative. For these reasons, the Coast Guard expects any impact of this rulemaking establishing a ( printed page 20854) 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 will 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 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 made a determination 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.

For the reasons discussed in the preamble, the Coast Guard is amends 33 CFR part 147 as follows:

89 FR 20851