Safety Zone; Hurricanes, Tropical Storms, and Other Storms With High Winds; Captain of the Port Zone Virginia
| Court | Coast Guard |
| Citation | 88 FR 63042 |
| Published date | 14 September 2023 |
| Record Number | 2023-19863 |
Federal Register, Volume 88 Issue 177 (Thursday, September 14, 2023)
[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Proposed Rules]
[Pages 63042-63045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19863]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[USCG-2023-0366]
RIN 1625-AA00
Safety Zone; Hurricanes, Tropical Storms, and Other Storms With
High Winds; Captain of the Port Zone Virginia
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard is proposing to establish a safety zone for
the navigable waters of the Sector Virginia Captain of the Port (COTP)
Zone, to be enforced in the event of hurricanes, tropical storms, and
other storms with high winds. This action is necessary to ensure the
safety of the waters of the Sector Virginia COTP Zone. This proposed
rulemaking would establish actions to be completed by industry and
vessels within the COTP Zone before hurricanes, tropical storms, and
other storms with high winds threatening the State of Virginia make
landfall, and afterwards as well. We invite your comments on this
proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before October 16, 2023.
ADDRESSES: You may submit comments identified by docket number USCG-
2023-0366 using the Federal Decision-Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email LCDR Ashley Holm, Chief Waterways
Management Division U.S. Coast Guard; 757-617-7986,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MTS Marine Transportation System
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
Virginia has the potential to be affected by hurricanes and
tropical storms on a yearly basis, especially between the months of
June and November. Additionally, severe storms generating high winds
and rough seas are also common in the winter months. The Sector
Virginia COTP proposes establishing a safety zone to protect mariners,
port infrastructure, and the environment during and after these severe
weather events. The Coast Guard is proposing this rulemaking under
authority in 46 U.S.C. 70034.
III. Discussion of Proposed Rule
The Coast Guard proposes to establish a safety zone on the
navigable waters of the Sector Virginia COTP Zone during hurricanes,
tropical storms, and other storms with high winds. This safety zone
would establish actions to be completed by local industry and vessels
in the COTP zone prior to landfall of hurricanes, tropical storms, and
other storms with high winds threatening Virginia and in the aftermath
of landfall. Port Conditions (WHISKEY, X-RAY, YANKEE, ZULU, and
RECOVERY) are standardized terms for states of operation instituted by
the COTP which are clearly communicated to port
[[Page 63043]]
facilities, vessels, and members of the Marine Transportation System
(MTS).
Actions to be taken by vessels is provided in the language of the
proposed rule. In addition, ports and waterfront facilities are
encouraged to take action when specific Port Conditions are declared.
Under Port Condition WHISKEY, ports and waterfront facilities should
remove all debris and secure potential flying hazards. Upon a
declaration that Port Condition X-RAY is in effect, port facilities
should ensure that potential flying debris and hazardous materials are
removed, and that loose cargo and cargo equipment is secured. Upon a
declaration of Port Condition YANKEE, terminal operators should
terminate all cargo operations not associated with storm preparations.
All facilities should continue to operate in accordance with approved
Facility Security Plans (as defined at 33 CFR 101.105, and as further
described in 33 CFR 105.400 to 105.415), and to comply with all
applicable requirements of the Maritime Transportation Security Act of
2002 (46 U.S.C. chapter 701).
Under the proposed rule, the COTP would retain flexibility in
controlling and reconstituting vessel traffic during periods of heavy
weather, and it would allow for the expedited resumption of the MTS
following such events. The proposed safety zone would consist of all
waters of the territorial seas within the Sector Virginia COTP Zone, as
defined in 33 CFR 3.25-10. Portions of the safety zone might be
activated at different times, as conditions dictated. Notice of Port
Conditions and their requirements would be given via Marine Safety
Information Bulletins and Broadcast Notice to Mariners. The regulatory
text we are proposing appears at the end of this document.
IV. Regulatory Analyses
We developed this proposed 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 NPRM has not been designated a ``significant
regulatory action,'' under Executive Order 12866, as amended by
Executive Order 14094 (Modernizing Regulatory Review). Accordingly, the
NPRM has not been reviewed by the Office of Management and Budget
(OMB).
This regulatory action determination is based on the necessity to
protect life, port infrastructure, and the environment during
hurricanes, tropical storms, and other storms with high winds. The
scope of the regulation is narrow and will only apply when a hurricane,
tropical storm, or other storm with high winds impacts the navigable
waters of the Virginia COTP Zone. These events are infrequent and of
short duration. Regulatory restrictions will be lifted as soon as
practicable.
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
proposed rule would 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
IV.A above, this proposed rule would not have a significant economic
impact on any vessel owner or operator.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it, please submit a comment
(see ADDRESSES) explaining why you think it qualifies and how and to
what degree this rulemaking would economically affect it.
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 proposed rule. If the proposed 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. The Coast Guard will not
retaliate against small entities that question or complain about this
proposed rule or any policy or action of the Coast Guard.
C. Collection of Information
This proposed rule would 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 proposed 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 proposed 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. If
you believe this proposed rule has implications for federalism or
Indian tribes, please call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section.
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 proposed rule would not
result in such an expenditure, we do discuss the potential effects of
this proposed rule elsewhere in this preamble.
F. Environment
We have analyzed this proposed 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 preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on
[[Page 63044]]
the human environment. This proposed rule involves a safety zone that
would prohibit entry in certain waters of the Sector Virginia COTP Zone
for the duration needed to ensure safe transit of vessels and industry
before and after a hurricane, tropical storm, or other storm with high
winds. Normally such actions are 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 preliminary 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. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this proposed
rule.
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.
V. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
Submitting comments. We encourage you to submit comments through
the Federal Decision-Making Portal at https://www.regulations.gov. To
do so, go to https://www.regulations.gov, type USCG-2023-0366 in the
search box and click ``Search.'' Next, look for this document in the
Search Results column, and click on it. Then click on the Comment
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER
INFORMATION CONTACT section of this proposed rule for alternate
instructions.
Viewing material in docket. To view documents mentioned in this
proposed rule as being available in the docket, find the docket as
described in the previous paragraph, and then select ``Supporting &
Related Material'' in the Document Type column. Public comments will
also be placed in our online docket and can be viewed by following
instructions on the https://www.regulations.gov Frequently Asked
Questions web page. Also, if you click on the Dockets tab and then the
proposed rule, you should see a ``Subscribe'' option for email alerts.
The option will notify you when comments are posted, or a final rule is
published.
We review all comments received, but we will only post comments
that address the topic of the proposed rule. We may choose not to post
off-topic, inappropriate, or duplicate comments that we receive.
Personal information. We accept anonymous comments. Comments we
post to https://www.regulations.gov will include any personal
information you have provided. For more about privacy and submissions
to the docket in response to this document, see DHS's eRulemaking
System of Records notice (85 FR 14226, March 11, 2020).
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is
proposing to amend 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: 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.
0
2. Add Sec. 165.520 to read as follows:
Sec. 165.520 Safety Zone; Hurricanes, Tropical Storms, and other
Storms with High Winds; Captain of the Port Zone Virginia.
(a) Regulated Areas. All navigable waters, as defined in 33 CFR
2.36, within the Captain of the Port Zone (COPT) Virginia, as described
in 33 CFR 3.25-10, or some portion of those waters, during specified
conditions. Port conditions and safety zone activation may vary for
different portions of the regulated area at different times, based on
storm conditions and its projected track.
(b) Definitions. (1) Captain of the Port means Commander, Coast
Guard Sector Virginia.
(2) Representative means any Coast Guard commissioned, warrant, or
petty officer or civilian employee who has been authorized to act on
the behalf of the Captain of the Port.
(3) Port Condition WHISKEY means a condition set by the COTP when
National Weather Service (NWS) weather advisories indicate sustained
gale force winds (39-54 mph/34-47 knots) are predicted to reach the
COTP zone within 72 hours.
(4) Port Condition X-RAY means a condition set by the COTP when NWS
weather advisories indicate sustained gale force winds (39-54 mph/34-47
knots) are predicted to reach the COTP zone within 48 hours.
(5) Port Condition YANKEE means a condition set by the COTP when
NWS weather advisories indicate that sustained gale force winds (39-54
mph/34-47 knots) are predicted to reach the COTP zone within 24 hours.
(6) Port Condition ZULU means a condition set by the COTP when NWS
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) are predicted to reach the COTP zone within 12 hours.
(7) Port Condition RECOVERY means a condition set by the COTP when
NWS weather advisories indicate that sustained gale force winds (39-54
mph/34-47 knots) are no longer predicted for the regulated area. This
port condition remains in effect until the regulated areas are deemed
safe and are reopened to normal operations.
(c) Regulations--(1) Port Condition WHISKEY. All vessels must
exercise due diligence in preparation for potential storm impacts. All
oceangoing tank barges and their supporting tugs and all self-propelled
oceangoing vessels over 500 gross tons (GT) must make plans to depart
no later than setting of Port Condition Yankee unless authorized by the
COTP. The COTP may modify the geographic boundaries of the regulated
area and actions to be taken under Port Condition WHISKEY, based on the
trajectory and forecasted storm conditions.
(2) Port Condition X-RAY. All vessels must ensure that potential
flying debris and hazardous materials are removed, and that loose cargo
and cargo equipment is secured. Vessels at facilities must carefully
monitor their moorings and cargo operations. Additional anchor(s) must
be made ready to let go, and preparations must be made to have a
continuous anchor watch during the storm. Engine(s) must be made
immediately available for maneuvering. Also, vessels must maintain a
continuous listening watch on VHF Channel 16. All oceangoing tank
barges and their supporting tugs and all self-propelled oceangoing
vessels over 500 GT must prepare to depart the port and anchorages
within the affected regulated area. These
[[Page 63045]]
vessels shall depart immediately upon the setting of Port Condition
YANKEE. During this condition, slow-moving vessels may be ordered to
depart to ensure safe avoidance of the incoming storm. Vessels that are
unable to depart the port must contact the COTP to receive permission
to remain in port. Vessels with COTP's permission to remain in port
must implement their pre-approved mooring arrangement. The COTP may
require additional precautions to ensure the safety of the ports and
waterways. The COTP may modify the geographic boundaries of the
regulated area and actions to be taken under Port Condition X-RAY based
on the trajectory and forecasted storm conditions.
(3) Port Condition YANKEE. Affected ports are closed to all inbound
vessel traffic. All oceangoing tank barges and their supporting tugs
and all self-propelled oceangoing vessels over 500 GT must have
departed the regulated area. The COTP may require additional
precautions to ensure the safety of the ports and waterways. The COTP
may modify the geographic boundaries of the regulated area and actions
to be taken under Port Condition YANKEE based on the trajectory and
forecasted storm conditions.
(4) Port Condition ZULU. Cargo operations are suspended, except
final preparations that are expressly permitted by the COTP as
necessary to ensure the safety of the ports and facilities. Other than
vessels designated by the COTP, no vessels may enter, transit, move, or
anchor within the regulated area. The COTP may modify the geographic
boundaries of the regulated area and actions to be taken under Port
Condition ZULU based on the trajectory and forecasted storm conditions.
(5) Port Condition RECOVERY. Designated areas are closed to all
vessels. Based on assessments of channel conditions, navigability
concerns, and hazards to navigation, the COTP may permit vessel
movements with restrictions. Restrictions may include, but are not
limited to, preventing, or delaying vessel movements, imposing draft,
speed, size, horsepower or daylight restrictions, or directing the use
of specific routes. Vessels permitted to transit the regulated area
shall comply with the lawful orders or directions given by the COTP or
representative.
(6) Regulated Area Notice. The Coast Guard will provide notice of
where, within the regulated area, a declared Port Condition is to be in
effect via Broadcast Notice to Mariners, Marine Safety Information
Bulletins, or by on-scene representatives.
(7) Exception. This regulation does not apply to authorized law
enforcement agencies operating within the regulated area.
Dated: September 8, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2023-19863 Filed 9-13-23; 8:45 am]
BILLING CODE 9110-04-P
