Rule2023-18066
Safety Zone; Hurricanes, Tropical Storms and other Disasters in Southeast Texas and Southwest Louisiana
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 22, 2023
Effective
September 21, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is establishing 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, prior to, during and following hurricanes, tropical storms and other disasters. This regulation establishes 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.
Full Text
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<title>Federal Register, Volume 88 Issue 161 (Tuesday, August 22, 2023)</title>
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[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Rules and Regulations]
[Pages 57006-57009]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18066]
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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, Department of Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing 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, prior to, during and following
hurricanes, tropical storms and other disasters. This regulation
establishes 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.
DATES: This rule is effective September 21, 2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, 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, in the Document
Type column, select ``Supporting & Related Material.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or
[[Page 57007]]
email Mr. Douglas Hendrix, Marine Safety Unit Port Arthur, U.S. Coast
Guard; telephone 409-719-5086, email <a href="/cdn-cgi/l/email-protection#02666d77656e63712c652c6a676c66706b7a3042777161652c6f6b6e"><span class="__cf_email__" data-cfemail="cca8a3b9aba0adbfe2abe2a4a9a2a8bea5b4fe8cb9bfafabe2a1a5a0">[email protected]</span></a>.
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 Information and Regulatory History
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.
On May 31, 2023, the Coast Guard published a notice of proposed
rulemaking (NPRM) titled ``Safety Zone; Hurricanes, Tropical Storms,
and Other Disasters in Southeast Texas and Southwest Louisiana.'' 88 FR
34797. There we stated why we issued the NPRM and invited comments on
our proposed regulatory action related to this safety zone. During the
comment period that ended June 15, 2023, we received two (2) comments.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under the authority in 46
U.S.C. 70034. The purpose of this rulemaking is to protect mariners,
port infrastructure and the environment during and after extreme
weather and other natural disasters.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received two comments on our NPRM published May
31, 2023. One comment received was supportive of the rule. The second
comment suggested that (1) the regulatory text should be clearer in
identifying the geographic area(s) where Port Condition requirements
would be applicable; and (2) that the COTP should require
identification and notification of ``marine vessels, offshore rigs,
barges, etc.'' We concur with the first suggestion and have modified
the language in paragraphs (c)(1), (2), and (7) of the regulatory text
to be clearer. With regard to the second suggestion, we do not concur
that additional language is necessary. The regulatory text provides the
COTP sufficient authority to address situational circumstances without
establishing vague affirmative requirements.
This rule establishes 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 and describes the
actions a COTP may take to restrict access to hazardous areas in the
aftermath of these events. The safety zone consists of all navigable
waters of the Port Arthur COTP zone, as prescribed in 33 CFR 3.40-
28(b). The regulatory text appears at the end of this document.
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 the following: (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 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 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 will 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
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
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 does not have a substantial direct effect on
one or more Indian
[[Page 57008]]
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 a
safety zone that prohibits 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. 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 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
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. 165.804 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 vessels and port
facilities in designated areas 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 in
designated areas 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.
(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
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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 designated ports and/or waterways within the regulated area covered
by each Port Condition via Broadcast Notice to Mariners, Marine Safety
Information Bulletin or by on-scene designated representatives.
(8) Exception. This section does not apply to authorized law
enforcement agencies operating within the regulated area.
Dated: August 15, 2023.
Anthony R. Migliorini,
Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port
Arthur.
[FR Doc. 2023-18066 Filed 8-21-23; 8:45 am]
BILLING CODE 9110-04-P
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</html>Indexed from Federal Register on August 22, 2023.
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.