[Federal Register Volume 88, Number 134 (Friday, July 14, 2023)]
[Proposed Rules]
[Pages 45123-45126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14945]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0052]
RIN 1625-AA00


Safety Zone; Hurricanes and Tropical Storms in Captain of the 
Port Zone North Carolina

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a safety zone to be 
enforced in the event of hurricanes and tropical storms in the Sector 
North Carolina Captain of the Port (COTP) Zone. This action is 
necessary to ensure the safety of the waters of the Sector North 
Carolina COTP Zone. This proposed rulemaking would establish actions to 
be completed by industry and vessels in the COTP Zone prior to landfall 
of hurricanes and tropical storms threatening the State of North 
Carolina.

[[Page 45124]]

We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard August 14, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0052 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 Petty Officer Ken Farah, Waterways 
Management Division, U.S. Coast Guard; telephone 910-772-2221, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
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

    North Carolina has the potential to be affected by hurricanes and 
tropical storms on a yearly basis, especially between the months of 
June and November. The Sector North Carolina Captain of the Port (COTP) 
proposes establishing a safety zone to provide for the safety of life 
and for the protection of port infrastructure and of the environment 
during such storms. The Coast Guard is proposing this rulemaking under 
authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP of Sector North Carolina is proposing to establish a 
safety zone to be enforced in case of hurricanes and tropical storms in 
North Carolina. This action is necessary to ensure the safety of the 
waters of the COTP North Carolina and it would establish actions to be 
completed by local industry and vessels in the COTP zone prior to 
landfall of hurricanes and tropical storms threatening the State of 
North Carolina. The proposed safety zone would consist of all navigable 
waters of the United States in the North Carolina COTP Zone, as defined 
in 33 CFR 3.25-20. Portions of the safety zone may be activated at 
different times, as conditions dictate. The proposed regulatory text 
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).
    This regulatory action determination is based on the necessity to 
protect life and port infrastructure during hurricanes and tropical 
storms. The scope of the regulation is narrow and will only apply when 
a hurricane or tropical storm impacts the navigable waters of the 
Sector North Carolina Captain of the Port Zone. These events are 
infrequent and of short duration. Regulatory restrictions will be 
lifted as soon as practicable following the passage of a named storm.

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

[[Page 45125]]

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 the human environment. This proposed rule involves a safety 
zone that would prohibit entry in certain waters of the North Carolina 
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-2023-0052 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

    Marine safety, Navigation, 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.  165.562 to read as follows:


Sec.  165.562  Safety Zone; Hurricanes and Tropical Storms in Captain 
of the Port Zone North Carolina.

    (a) Regulated Areas. All navigable waters of the United States 
within Sector North Carolina COTP Zone as described in 33 CFR 3.25-20, 
during specified port conditions. Port conditions and safety zone 
activation may vary for different regions of the regulated area at 
different times, based on storm conditions and projected track.
    (b) Definitions.
    (1) Captain of the Port means the Commander, Coast Guard Sector 
North Carolina.
    (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) from a tropical or hurricane 
force storm are predicted to make landfall at the Port of Wilmington or 
Port of Morehead City 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) from a tropical or hurricane force storm are predicted to make 
landfall at the port 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) from a tropical or hurricane force storm are predicted 
to make landfall at the port 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) from a tropical or hurricane force storm are predicted to 
make landfall at the port 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) from a tropical or hurricane force storm are no longer 
predicted for the designated area. This port condition remains in 
effect until the regulated areas are deemed safe and reopened to normal 
operations.
    (c) Regulations.
    (1) Port Condition WHISKEY. All vessels must exercise due diligence 
in preparation for potential storm impacts. Ports and waterfront 
facilities are encouraged to remove all debris and secure potential 
flying hazards. All self-propelled oceangoing vessels over 500 gross 
tons (GT), all oceangoing tank barges and their supporting tugs, and 
all tank barges over 200 GT wishing to remain in port should seek 
approval

[[Page 45126]]

from the COTP prior to Port Condition X-Ray.
    (2) Port Condition X-RAY. All vessels and port facilities are 
encouraged to ensure potential flying debris and hazardous materials 
are removed or secured. All self-propelled oceangoing vessels over 500 
gross tons (GT), all oceangoing tank barges and their supporting tugs, 
and all tank barges over 200 GT without COTP approval to remain in port 
must depart prior to the setting of Port Condition Yankee. Vessels with 
COTP permission to remain in port must implement their approved mooring 
arrangement.
    (3) Port Condition YANKEE. Affected ports are closed to all inbound 
vessel traffic. All self-propelled oceangoing vessels over 500 gross 
tons (GT), all oceangoing tank barges and their supporting tugs, and 
all tank barges over 200 GT must have departed designated ports within 
the Sector North Carolina COTP zone unless they have received COTP 
approval to remain in port.
    (4) Port Condition ZULU. Affected ports and waterways are closed to 
all vessel traffic unless specifically authorized by the COTP or 
representative. Cargo operations are suspended, including bunkering and 
lightering. The COTP may grant cargo transfer waivers unless a 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 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 
designated representative.
    (6) Safety Zones Notice. Coast Guard Sector North Carolina will 
attempt to notify the maritime community of periods during which these 
safety zones will be in effect via Broadcast Notice to Mariners, Marine 
Safety Information Broadcast, 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 Broadcast, or by on-scene designated representatives.
    (8) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

    Dated: June 29, 2023.
Timothy J. List,
Captain, U.S. Coast Guard, Captain of the Port, Sector North Carolina.
[FR Doc. 2023-14945 Filed 7-13-23; 8:45 am]
BILLING CODE 9110-04-P