Safety Zone; Vineyard Wind 1 Wind Farm Project Area, Outer Continental Shelf, Lease OCS-A 0501, Offshore Massachusetts, Atlantic Ocean

AGENCY:

Coast Guard, Department of Homeland Security (DHS).

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing 63 temporary 500-meter safety zones around the construction of 62 wind turbine generators (WTGs) and one electrical service platform (ESP) located in the Vineyard Wind 1 Wind Farm (VW1WF) project area within federal waters on the Outer Continental Shelf (OCS), specifically in the northern portion of Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area OCS–A 0501, approximately 12 nautical miles (NM) offshore of Martha's Vineyard, Massachusetts and 12 NM offshore Nantucket, Massachusetts. This action is necessary to provide for the safety of life, property, and the environment during the planned construction of each facility's monopile type foundation and subsequent installation of the WTGs turbines and ESP platform from June 27, 2023, to May 31, 2024. When enforced, only attending vessels and those vessels specifically authorized by the First Coast Guard District Commander, or a designated representative, are permitted to enter or remain in the temporary safety zones.

DATES:

This rule is effective without actual notice from June 30, 2023, through 11:59 p.m. on May 31, 2024. For the purposes of enforcement, actual notice will be used from June 27, 2023, until June 30, 2023.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG–2023–0277 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 rulemaking, call or email Mr. Craig Lapiejko, Waterways Management, at Coast Guard First District, telephone 617–603–8592, email craig.d.lapiejko@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BOEM Bureau of Ocean Energy Management

BNM Broadcast Notice to Mariners

CFR Code of Federal Regulations

DD Degrees Decimal

DHS Department of Homeland Security

EIS Environmental Impact Statement

FR Federal Register

MSIB Marine Safety Information Bulletin

NPRM Notice of proposed rulemaking

OCS Outer Continental Shelf

OSS Offshore Substation

LNM Local Notice to Mariners

NAD 83 North American Datum of 1983

NM Nautical Mile

§ Section

SMIB Safety Marine Information Broadcast

U.S.C. United States Code

WTG Wind Turbine Generator

VHF–FM Very High Frequency—Frequency Modulation

VW1WF Vineyard Wind 1 Wind Farm

II. Background, Purpose, and Legal Basis

On March 15, 2023, Vineyard Wind, LLC, an offshore wind farm developer, notified the Coast Guard that they plan to begin construction of facilities in the VW1WF project area within federal waters on the OCS, specifically in the northern portion of BOEM Renewable Energy Lease Area OCS–A 0501, approximately 12 NM offshore Martha's Vineyard, Massachusetts and 12 NM offshore Nantucket, Massachusetts in June 2023.

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 May 3, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Vineyard Wind 1 Wind Farm Project Area, Outer Continental Shelf, Lease OCS–A 0501, Offshore Massachusetts, Atlantic Ocean” (88 FR 27839). 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 62 WTGs and one ESP located in the VW1WF project area. Five comments were received during the comment period that ended June 2, 2023.

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 . The comment period for the NPRM associated with the VW1WF project area ended on June 2, 2023, and construction for the project has already begun. Thus, there is insufficient time to allow for 30-days before the rule becomes effective. Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety risks associated with the extremely complex and unusually hazardous construction of these OCS facilities including hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations, potential falling debris, increased vessel traffic, and stationary barges in close proximity to the facilities and each other.

Based on these circumstances, the First Coast Guard District Commander has determined that establishment of 63 safety zones through rulemaking is warranted to ensure the safety of life, property, and the environment within a 500-meter radius of each of the 63 facilities during their construction.

III. 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 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.

IV. Discussion of Comments, Changes, and the Rule

As noted above, the Coast Guard received five public comments on the NPRM published May 3, 2023. All five commenters expressed general opposition to wind farm construction. Three commenters expressed specific opposition to the proposed rule and the enforcement of safety zones around construction. Two commenters questioned Coast Guard's authority to establish safety zones on the Outer Continental Shelf and stated concerns that impact of safety zones was not analyzed by BOEM during the VW1WF Final Environmental Impact Statement (EIS) process. We provide a detailed discussion of those comments below.

First, 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. On January 1, 2021, Congress enacted the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (NDAA), Public Law 116–283, 134 Stat. 3388. Section 9503 of the NDAA amended Section 4(a)(1) of the Outer Continental Shelf Lands Act (43 U.S.C. 1333(a)(1)) to specifically include non-mineral energy resources. On January 11, 2023, the Coast Guard published a final rule titled “Safety Zones; Technical and Conforming Amendments” (88 FR 1511), which made non-substantive technical and conforming amendments to the Code of Federal Regulations (CFR) at part 147. That rule enabled the Coast Guard to place safety zones for non-mineral energy resource facilities on the Outer Continental Shelf in part 147 where other OCS safety zone regulations are located.

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 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.

Second, while the safety zones were not analyzed by BOEM during the EIS process, the Coast Guard has 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's compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f). The Coast Guard has determined that the action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a safety zone around an OCS facility to protect life, property, and the marine environment and 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 subject docket. For instructions on locating the docket, see the ADDRESSES section of the preamble.

One commenter disagreed with the finding of no significant economic impact on small entities. While this rule may affect some owners or operators of small entities, the Coast Guard believes these safety zones will have a minimal economic impact because the safety zones are temporarily enforced, allow for deviation requests, and do not significantly impact transits. Vessels will only be prohibited from the regulated zone during periods of actual construction activity. The Coast Guard anticipates the enforcement period at each location to last approximately 48 hours. Vessel traffic will be able to pass safely around each safety zone using an alternate route. Use of an alternate route will likely cause minimal delay for vessels in reaching their destination depending on other traffic in the area and vessel speeds. Vessels will be permitted to request deviations from this rule to transit through a safety zone. Such requests would be considered on a case by case basis and may be authorized by the First Coast Guard District Commander.

That same commenter expressed concerns about the effective date of the safety zones not aligning with the dates and timing of actual construction and that there is nothing preventing the Coast Guard from enacting future exclusion zones.

Although the Coast Guard has been aware of the VW1WF project area for several years, the Coast Guard was only recently granted the authority to establish safety zones for non-mineral energy resource facilities on the Outer Continental Shelf. The Coast Guard was notified of the estimated construction details on March 15, 2023, and was notified of the exact construction commencement date after the NPRM was published. The Coast Guard views public participation as essential to effective rulemaking and determined that it was in the public interest to open the comment period. The 63 safety zones established by this rule are intended to be temporary and are enforceable only through May 31, 2024. If the project is completed before May 31, 2024, enforcement of the safety zones will be suspended, and notice will be provided via Local Notice to Mariners. The implementation of additional safety zones would require additional notice and comment rulemaking.

One commenter offered two recommendations for the Coast Guard to consider when establishing temporary safety zones.

First, the commenter recommended additional means of making notice of each enforcement period. Recommendations included: directly notifying local commercial fishing organizations, creating a dedicated web page, and requiring vessel on-scene during all construction activities whose sole role is to patrol the area and ensure vessels are aware of the safety zone. As stated in the proposed rule, the Coast Guard will make notice of each enforcement period via the First Coast Guard District Local Notice to Mariners (LNM). The LNM has historically been the primary means for disseminating information concerning aids to navigation, hazards to navigation, and other marine information of interest to mariners on the waters of the United States. The First Coast Guard District LNM is available online and can be found at its dedicated website at https://www.navcen.uscg.gov. Notices are published weekly. Interested parties may subscribe to receive email updates at https://service.govdelivery.com/accounts/USDHSCG/subscriber/new?topic_id=USDHSCG_65. The Coast Guard believes the use of the LNM to be the most efficient means to distribute information concerning enforcement periods for these safety zones.

The proposed rule stated that the Coast Guard would issue a Broadcast Notice to Mariners (BNM) via marine channel 16 (VHF–FM) as soon as practicable in response to an emergency or hazardous condition. The Coast Guard now offers an online subscription service in addition to the standard VHF BNM broadcasts which, traditionally, was the only method to receive this vital navigational information. Mariners may now use a subscription service to plan for underway periods and can receive updates to navigational hazards in near-real-time without waiting on scheduled VHF broadcasts. Sign up to receive BNMs via email for your waterway at https://www.navcen.uscg.gov/subscribe-email-rss-feeds.

The Coast Guard will also issue Safety Marine Information Broadcasts (SMIB) via marine channel 16 (VHF–FM) for each Safety Zone starting an hour before and broadcasting four times per day for the duration of the safety zone and Marine Safety Information Bulletins (MSIB) are distributed via email. MSIBs will also be posted on Coast Guard Sector Southeastern New England's Homeport at https://homeport.uscg.mil/port-directory/southeastern-new-england-(providence).

Additionally, Vineyard Wind will provide dedicated safety and scout vessels on scene to provide advisory information.

Second, the commenter recommended the definition of a designated representative be expanded if requests to deviate from the rule to transit through a safety zone becomes time consuming. Specifically, the recommendation was to expand the definition of “designated representative” to account for need to process rule deviations in a timely manner. The Coast Guard does not anticipate delays from our designated representatives. Upon further examination, the Coast Guard believes that the current definition of “designated representative” should be maintained. 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 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 necessity to broaden representative designation or the authority to permit passage through and around the safety zones. Maintaining 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 First Coast Guard District Commander in the enforcement of the safety zones will ensure consistent application.

The First Coast Guard District has factored applicable statutes and regulations into the subject rule. Applicable authorities are cited in section III. of this document.

After considering the comments discussed above, the Coast Guard determined that no additional changes should be made to the regulatory text. The rule ensures consistency, sufficient notice, and improved safety while minimizing impact on vessel transit.

There is one change to the regulatory text of this rule from the proposed rule in the NPRM to account for the delay in the effective date.

This rule establishes 63 temporary 500-meter safety zones around the construction of 62 WTGs and one ESP on the OCS from June 27, 2023, through 11:59 p.m. on May 31, 2024.

The construction of these facilities is expected to take place in mixed phases alternating between the installation of several monopile type foundations followed by the installation of the upper structures then repeating this process throughout the project area until all 63 facilities have been completed. The 63 temporary safety zones would be enforced individually as construction progresses from one structure location to the next throughout the entire process for a period lasting approximately 48 hours. The Coast Guard will make 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 31, 2024, to encompass any construction delays due to weather or other unforeseen circumstances. If the project is completed before May 31, 2024, enforcement of the safety zones would be suspended, and notice given via Local Notice to Mariners.

Additional information about the construction process of the VW1WF can be found at https://www.boem.gov/vineyard-wind.

The 63 temporary 500-meter safety zones around the construction of 62 WTGs and one ESP are in the VW1WF project area, specifically in the northern portion of BOEM Renewable Energy Lease Area OCS–A 0501, approximately 12 NM offshore of Martha's Vineyard, Massachusetts and 12 NM offshore Nantucket, Massachusetts, within federal waters on the OCS.

The positions of each individual safety zone will be referred to using a unique alpha-numeric naming convention outlined in the “Rhode Island and Massachusetts Structure Labeling Plot (West).”

Aligning with authorities under 33 CFR 147.15, the safety zones will include the area within 500-meters of the center point of the positions provided in the table below expressed in Decimal Degrees (DD) based on North American Datum 1983 (NAD 83).

When enforced, no unauthorized vessel or person would be permitted to enter the safety zone without obtaining permission from the First Coast Guard District Commander or a designated representative. Requests for entry into the safety zone would be considered and reviewed on a case-by-case basis. Persons or vessels seeking to enter the safety zone must request authorization from the First Coast Guard District Commander or designated representative via VHF–FM channel 16 or by phone at 617–603–1560 (First Coast Guard District Command Center). If permission is granted, all persons and vessels shall comply with the instructions of the First 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 established safety zones will extend to a maximum distance of 500-meters around the OCS facility measured from its center point. Vessel traffic will be able to safely transit around the safety zones, which would impact a small, designated area in the Atlantic Ocean, without significant impediment to their voyage. This safety zone will provide for the safety of life, property, and 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 no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would 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 VW1WF, 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 are temporarily enforced, allow for deviation requests, and do not impact vessel transit significantly. Regarding the enforcement period, although these safety zones will be in effect from June 27, 2023, through May 31, 2024, vessels will only be prohibited from the regulated zone during periods of actual construction activity in correspondence 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 would be considered on a case by-case basis and may be authorized by the First Coast Guard District Commander or a designated representative. For these reasons, the Coast Guard expects any impact of this rulemaking establishing a 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 all small entities in understanding this temporary final 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 temporary final 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 would 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 temporary final rule will not result in such an expenditure, we do discuss the potential effects of this temporary final rule elsewhere in this preamble.

F. Environment

We have analyzed this final 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 the establishment of safety zones 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.

List of Subjects in 33 CFR Part 147

• Continental shelf
• Marine safety
• Navigation (waters)

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

PART 147—SAFETY ZONES

1. The authority citation for part 147 continues to read as follows:

Authority: 14 U.S.C. 544; 43 U.S.C. 1333; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 147.T01–0277 to read as follows: