[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 [www.gpo.gov]
[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 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 Mr. Scott Whalen, Marine Safety Unit 
Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email 
[email protected].

[[Page 34798]]


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

[[Page 34799]]

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 https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, 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 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: 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]
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