[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 [www.gpo.gov]
[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 https://www.regulations.gov, 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 [email protected].

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

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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

[[Page 57009]]

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]
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