Proposed Rule2023-11481
Safety Zone; Hurricanes, Tropical Storms and Other Disasters in Southeast Texas and Southwest Louisiana
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Published
May 31, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is proposing to establish a permanent safety zone to be enforced in the event of hurricanes, tropical storms, and other disasters in southeast Texas and southwest Louisiana. This action is necessary to ensure the safety of the waters of the Port Arthur Captain of the Port (COTP) zone Port Arthur, TX. This proposed rulemaking would establish actions to be completed by industry and vessels in the COTP zone prior to landfall of hurricanes, tropical storms, and other disasters threatening Port Arthur, TX. We invite your comments on this proposed rulemaking.
Full Text
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<title>Federal Register, Volume 88 Issue 104 (Wednesday, May 31, 2023)</title>
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[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Proposed Rules]
[Pages 34797-34800]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11481]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0380]
RIN 1625-AA00
Safety Zone; Hurricanes, Tropical Storms and Other Disasters in
Southeast Texas and Southwest Louisiana
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard is proposing to establish a permanent safety
zone to be enforced in the event of hurricanes, tropical storms, and
other disasters in southeast Texas and southwest Louisiana. This action
is necessary to ensure the safety of the waters of the Port Arthur
Captain of the Port (COTP) zone Port Arthur, TX. This proposed
rulemaking would establish actions to be completed by industry and
vessels in the COTP zone prior to landfall of hurricanes, tropical
storms, and other disasters threatening Port Arthur, TX. We invite your
comments on this proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before June 15, 2023.
ADDRESSES: You may submit comments identified by docket number USCG-
2023-0380 using the Federal Decision-Making Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 Mr. Scott Whalen, Marine Safety Unit
Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email
<a href="/cdn-cgi/l/email-protection#b2d6ddc7d5ded3c19cd59cdad7dcd6c0dbca80f2c7c1d1d59cdfdbde"><span class="__cf_email__" data-cfemail="fa9e958f9d969b89d49dd4929f949e889382c8ba8f89999dd4979396">[email protected]</span></a>.
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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
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
Southeast Texas and southwest Louisiana has the potential to be
affected by hurricanes, tropical storms and other disasters on a yearly
basis, especially between the months of June and November. The Captain
of the Port (COTP) Port Arthur proposes establishing a safety zone to
provide for the safety of life during and subsequent to such storms.
The purpose of this rulemaking is to protect mariners, port
infrastructure and the environment during and after extreme weather and
other natural disasters. The Coast Guard is proposing this rulemaking
under the authority in 46 U.S.C. 70034.
III. Discussion of Proposed Rule
The COTP Port Arthur is proposing to establish a safety zone to be
enforced in case of hurricanes, tropical storms, and other disasters in
southeast Texas and southwest Louisiana. This action is necessary to
ensure the safety of the waters of the COTP Port Arthur zone. This
proposed rule would establish actions to be completed by local industry
and vessels in the COTP zone prior to landfall of hurricanes, tropical
storms, and other disasters threatening the COTP zone. The proposed
safety zone would consist of all navigable waters of the Port Arthur
COTP zone, as prescribed in 33 CFR 3.40-25(b). 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. Accordingly, the NPRM
has not been reviewed by the Office of Management and Budget (OMB).
We expect the economic impact of this rule to be non-significant
for the following reasons: (1) Vessel traffic and facilities would be
impacted by this rule only during limited times while heavy weather or
other disaster is expected to impact the Port Arthur COTP zone; (2)
vessel traffic would be secured only during port conditions Yankee,
Zulu, and Recovery and only in port areas potentially affected by gale
force winds; and (3) the Coast Guard would issue a Broadcast Notice to
Mariners via VHF-FM marine channel 16 about the safety zone, and this
rule would allow vessels to seek permission to remain in port.
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 rule 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
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the human environment. This proposed rule involves a safety zone that
would prohibit entry in certain waters of the Port Arthur COTP Zone for
the duration needed to ensure safe transit of vessels and industry post
hurricane, post storm, and post emergency. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To
do so, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG- 2023-0380 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: 6 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 new Sec. 165.804 to read as follows:
Sec. 165.804 Safety Zone; Hurricanes, Tropical Storms and Other
Disasters in Southeast Texas and Southwest Louisiana.
(a) Regulated Areas. All navigable waters within the Port Arthur
Captain of the Port (COTP) Zone, MSU Port Arthur, TX, as described in
33 CFR 3.40-28(b), during specified conditions.
(b) Definitions.
(1) Designated Representative means Coast Guard Patrol Commanders,
including Coast Guard coxswains, petty officers, and other officers
operating Coast Guard vessels, and Federal, state, and local officers
designated by or assisting the COTP Port Arthur, in the enforcement of
the regulated areas.
(2) Port Condition WHISKEY means a condition set by the COTP when
weather advisories indicate sustained gale force winds (39-54 mph/34-47
knots) from a tropical or hurricane force storm are predicted to make
landfall at the port within 72 hours.
(3) Port Condition X-RAY means a condition set by the COTP when
weather advisories indicate sustained gale force winds (39-54 mph/34-47
knots) from a tropical or hurricane force storm are predicted to make
landfall at the port within 48 hours.
(4) Port Condition YANKEE means a condition set by the COTP when
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to
make landfall at the port within 24 hours.
(5) Port Condition ZULU means a condition set by the COTP when
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to
make landfall at the port within 12 hours.
(6) Port Condition RECOVERY means the condition set when weather
advisories indicate that sustained gale force winds from a tropical
hurricane force storm are no longer predicted for the designated area.
This port condition remains in effect until the regulated areas are
safe and reopened to normal operations.
(c) Regulations.
(1) Port Condition WHISKEY. All vessel and port facilities must
exercise due diligence in preparation for potential storm impacts.
Ports and waterfront facilities must begin removing all debris and
securing potential flying hazards. Oceangoing vessels 500 gross tons
(GT) and above must make plans to depart no later than the setting of
Port Condition Yankee unless authorized by the COTP. Vessels wishing to
remain in port are required to submit a Notice of Intent to Remain In
Port to the COTP prior to setting Port Condition X-Ray.
(2) Port Condition X-RAY. All vessels and port facilities must
ensure that potential flying debris is removed or secured. Hazardous
materials/pollution hazards must be secured in a safe manner and away
from waterfront areas. Vessels over 500GT without an approval to remain
in port must depart prior to the setting of Port Condition YANKEE.
Vessels with the COTP's permission to remain in port must implement
their pre-approved mooring arrangement. Terminal operators must prepare
to terminate all cargo operations. The COTP may require additional
precautions to ensure the safety of the ports and waterways.
[[Page 34800]]
(3) Port Condition YANKEE. Affected ports are closed to inbound
vessel traffic. All oceangoing vessels greater than 500 Gross Tons must
depart designated ports prior to the setting of Port Condition ZULU.
Terminal operators must terminate all cargo operations not associated
with storm preparations. Cargo operations associated with storm
preparations include moving cargo within or off the port for securing
purposes, port/facility equipment preparations, and similar activities,
but do not include moving cargo onto the port or vessel loading/
discharging operations unless specifically authorized by the COTP. All
facilities must continue to operate in accordance with approved
Facility Security Plans and comply with the requirements of the
Maritime Transportation Security Act.
(4) Port Condition ZULU. Designated areas are closed to all vessel
traffic except those specifically authorized by the COTP. Cargo
operations are suspended, including bunkering and lightering. Waivers
may be granted unless Cargo of Particular Hazard or Certain Dangerous
Cargo is involved.
(5) Port Condition RECOVERY. Designated areas are closed to all
commercial traffic and recreational vessels 65-feet in length and
greater. 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 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 designated
representative.
(6) Safety Zones Notice. The Coast Guard COTP will notify the
maritime community of periods during which these safety zones will be
in effect via Broadcast Notice to Mariners and Marine Safety
Information Bulletin or by on-scene designated representatives.
(7) Regulated Area Notice. The Coast Guard will provide notice of
the regulated area via Broadcast Notice to Mariners, Marine Safety
Information Bulletin or by on-scene designated representatives.
(8) Exception. This regulation does not apply to authorized law
enforcement agencies operating within the regulated area.
Dated: May 24, 2023.
Molly A. Wike,
Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port
Arthur.
[FR Doc. 2023-11481 Filed 5-30-23; 8:45 am]
BILLING CODE 9110-04-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.