[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Rules and Regulations]
[Pages 75495-75498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24304]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0366]
RIN 1625-AA00


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

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing 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 rule 
establishes 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.

DATES: This rule is effective December 4, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0366 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 about this rule, 
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
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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. In response, on 
September 14, 2023, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Safety Zone; Hurricanes, Tropical Storms, 
and other Storms with High Winds; Captain of the Port Zone Virginia'' 
(88 FR 63042). 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 October 16, 2023, we received one 
comment.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Sector Virginia (COTP) has determined 
that potential hazards associated with hurricanes, tropical storms, and 
other storms pose a safety concern to the maritime community. The 
purpose of this rule is to ensure safety of vessels and the navigable 
waters in the safety zone before, during, and after a hurricane, 
tropical storm, or other storm.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment that concurred with the 
proposed rulemaking on our NPRM published September 14, 2023. The 
comment also addressed the need for Coast Guard Sector Virginia to 
maintain and update the Port Heavy Weather Plan. The comment is 
referring to the Maritime Severe Weather Contingency Plan, which 
advises the maritime community of the sequence and timing of COTP 
decisions and actions made pursuant to 33 CFR parts 160 and 165 that 
may be taken when there is the threat of a hurricane. The Plan also 
recommends actions to be taken to minimize storm related deaths, 
injury, damage, and threats to the environment. Coast Guard Sector 
Virginia will review and update the Maritime Severe Weather Contingency 
Plan as necessary to reflect the promulgation of this rule, and to 
provide guidance on advisable steps to take in addition to those 
required by the rule. Aside from adding the word ``Sector'' to the 
title of the regulation to conform to 33 CFR 3.25-10, there are no 
changes in the regulatory text of this rule from the proposed rule in 
the NPRM.
    This rule establishes 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 establishes 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

[[Page 75496]]

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 facilities, vessels, and members of 
the Marine Transportation System (MTS).
    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).
    The COTP retains flexibility in controlling and reconstituting 
vessel traffic during periods of heavy weather, and it will allow for 
the expedited resumption of the MTS following such events. The safety 
zone consists 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 will be 
given via Marine Safety Information Bulletins and Broadcast Notice to 
Mariners. 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.

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 size, 
location, duration, and time of day of the regulated area. 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 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 will 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 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

[[Page 75497]]

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 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. 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.

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.  165.520 to read as follows:


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

    (a) Regulated areas. All navigable waters, as defined in 33 CFR 
2.36, within the Captain of the Port Zone Sector 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.
    Captain of the Port means Commander, Coast Guard Sector Virginia.
    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.
    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.
    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.
    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.
    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.
    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 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.


[[Page 75498]]


    Dated: October 27, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the Port, Sector Virginia.
[FR Doc. 2023-24304 Filed 11-2-23; 8:45 am]
BILLING CODE 9110-04-P