[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Proposed Rules]
[Pages 63042-63045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19863]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2023-0366]
RIN 1625-AA00


Safety Zone; Hurricanes, Tropical Storms, and Other Storms With 
High Winds; Captain of the Port Zone Virginia

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a safety zone for 
the navigable waters of the Sector Virginia Captain of the Port (COTP) 
Zone, to be enforced in the event of hurricanes, tropical storms, and 
other storms with high winds. This action is necessary to ensure the 
safety of the waters of the Sector Virginia COTP Zone. This proposed 
rulemaking would establish actions to be completed by industry and 
vessels within the COTP Zone before hurricanes, tropical storms, and 
other storms with high winds threatening the State of Virginia make 
landfall, and afterwards as well. We invite your comments on this 
proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 16, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0366 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 LCDR Ashley Holm, Chief Waterways 
Management Division U.S. Coast Guard; 757-617-7986, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MTS Marine Transportation System
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    Virginia has the potential to be affected by hurricanes and 
tropical storms on a yearly basis, especially between the months of 
June and November. Additionally, severe storms generating high winds 
and rough seas are also common in the winter months. The Sector 
Virginia COTP proposes establishing a safety zone to protect mariners, 
port infrastructure, and the environment during and after these severe 
weather events. The Coast Guard is proposing this rulemaking under 
authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The Coast Guard proposes to establish a safety zone on the 
navigable waters of the Sector Virginia COTP Zone during hurricanes, 
tropical storms, and other storms with high winds. This safety zone 
would establish actions to be completed by local industry and vessels 
in the COTP zone prior to landfall of hurricanes, tropical storms, and 
other storms with high winds threatening Virginia and in the aftermath 
of landfall. Port Conditions (WHISKEY, X-RAY, YANKEE, ZULU, and 
RECOVERY) are standardized terms for states of operation instituted by 
the COTP which are clearly communicated to port

[[Page 63043]]

facilities, vessels, and members of the Marine Transportation System 
(MTS).
    Actions to be taken by vessels is provided in the language of the 
proposed rule. In addition, ports and waterfront facilities are 
encouraged to take action when specific Port Conditions are declared. 
Under Port Condition WHISKEY, ports and waterfront facilities should 
remove all debris and secure potential flying hazards. Upon a 
declaration that Port Condition X-RAY is in effect, port facilities 
should ensure that potential flying debris and hazardous materials are 
removed, and that loose cargo and cargo equipment is secured. Upon a 
declaration of Port Condition YANKEE, terminal operators should 
terminate all cargo operations not associated with storm preparations. 
All facilities should continue to operate in accordance with approved 
Facility Security Plans (as defined at 33 CFR 101.105, and as further 
described in 33 CFR 105.400 to 105.415), and to comply with all 
applicable requirements of the Maritime Transportation Security Act of 
2002 (46 U.S.C. chapter 701).
    Under the proposed rule, the COTP would retain flexibility in 
controlling and reconstituting vessel traffic during periods of heavy 
weather, and it would allow for the expedited resumption of the MTS 
following such events. The proposed safety zone would consist of all 
waters of the territorial seas within the Sector Virginia COTP Zone, as 
defined in 33 CFR 3.25-10. Portions of the safety zone might be 
activated at different times, as conditions dictated. Notice of Port 
Conditions and their requirements would be given via Marine Safety 
Information Bulletins and Broadcast Notice to Mariners. 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, as amended by 
Executive Order 14094 (Modernizing Regulatory Review). 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, port infrastructure, and the environment during 
hurricanes, tropical storms, and other storms with high winds. The 
scope of the regulation is narrow and will only apply when a hurricane, 
tropical storm, or other storm with high winds impacts the navigable 
waters of the Virginia COTP Zone. These events are infrequent and of 
short duration. Regulatory restrictions will be lifted as soon as 
practicable.

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 rulemaking 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 63044]]

the human environment. This proposed rule involves a safety zone that 
would prohibit entry in certain waters of the Sector Virginia COTP Zone 
for the duration needed to ensure safe transit of vessels and industry 
before and after a hurricane, tropical storm, or other storm with high 
winds. 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-2023-0366 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: 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.  165.520 to read as follows:


Sec.  165.520  Safety Zone; Hurricanes, Tropical Storms, and other 
Storms with High Winds; Captain of the Port Zone Virginia.

    (a) Regulated Areas. All navigable waters, as defined in 33 CFR 
2.36, within the Captain of the Port Zone (COPT) Virginia, as described 
in 33 CFR 3.25-10, or some portion of those waters, during specified 
conditions. Port conditions and safety zone activation may vary for 
different portions of the regulated area at different times, based on 
storm conditions and its projected track.
    (b) Definitions. (1) Captain of the Port means Commander, Coast 
Guard Sector Virginia.
    (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) are predicted to reach the 
COTP zone 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) are predicted to reach the COTP zone 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) are predicted to reach the COTP zone 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) are predicted to reach the COTP zone 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) are no longer predicted for the regulated area. This 
port condition remains in effect until the regulated areas are deemed 
safe and are reopened to normal operations.
    (c) Regulations--(1) Port Condition WHISKEY. All vessels must 
exercise due diligence in preparation for potential storm impacts. All 
oceangoing tank barges and their supporting tugs and all self-propelled 
oceangoing vessels over 500 gross tons (GT) must make plans to depart 
no later than setting of Port Condition Yankee unless authorized by the 
COTP. The COTP may modify the geographic boundaries of the regulated 
area and actions to be taken under Port Condition WHISKEY, based on the 
trajectory and forecasted storm conditions.
    (2) Port Condition X-RAY. All vessels must ensure that potential 
flying debris and hazardous materials are removed, and that loose cargo 
and cargo equipment is secured. Vessels at facilities must carefully 
monitor their moorings and cargo operations. Additional anchor(s) must 
be made ready to let go, and preparations must be made to have a 
continuous anchor watch during the storm. Engine(s) must be made 
immediately available for maneuvering. Also, vessels must maintain a 
continuous listening watch on VHF Channel 16. All oceangoing tank 
barges and their supporting tugs and all self-propelled oceangoing 
vessels over 500 GT must prepare to depart the port and anchorages 
within the affected regulated area. These

[[Page 63045]]

vessels shall depart immediately upon the setting of Port Condition 
YANKEE. During this condition, slow-moving vessels may be ordered to 
depart to ensure safe avoidance of the incoming storm. Vessels that are 
unable to depart the port must contact the COTP to receive permission 
to remain in port. Vessels with COTP's permission to remain in port 
must implement their pre-approved mooring arrangement. The COTP may 
require additional precautions to ensure the safety of the ports and 
waterways. The COTP may modify the geographic boundaries of the 
regulated area and actions to be taken under Port Condition X-RAY based 
on the trajectory and forecasted storm conditions.
    (3) Port Condition YANKEE. Affected ports are closed to all inbound 
vessel traffic. All oceangoing tank barges and their supporting tugs 
and all self-propelled oceangoing vessels over 500 GT must have 
departed the regulated area. The COTP may require additional 
precautions to ensure the safety of the ports and waterways. The COTP 
may modify the geographic boundaries of the regulated area and actions 
to be taken under Port Condition YANKEE based on the trajectory and 
forecasted storm conditions.
    (4) Port Condition ZULU. Cargo operations are suspended, except 
final preparations that are expressly permitted by the COTP as 
necessary to ensure the safety of the ports and facilities. Other than 
vessels designated by the COTP, no vessels may enter, transit, move, or 
anchor within the regulated area. The COTP may modify the geographic 
boundaries of the regulated area and actions to be taken under Port 
Condition ZULU based on the trajectory and forecasted storm conditions.
    (5) Port Condition RECOVERY. Designated areas are closed to all 
vessels. 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 
representative.
    (6) Regulated Area Notice. The Coast Guard will provide notice of 
where, within the regulated area, a declared Port Condition is to be in 
effect via Broadcast Notice to Mariners, Marine Safety Information 
Bulletins, or by on-scene representatives.
    (7) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

    Dated: September 8, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2023-19863 Filed 9-13-23; 8:45 am]
BILLING CODE 9110-04-P