[Federal Register Volume 89, Number 55 (Wednesday, March 20, 2024)]
[Rules and Regulations]
[Pages 19732-19735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05803]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0834]
RIN 1625-AA00


Safety Zone; Storms With High Winds; Sector Maryland-National 
Capital Region Captain of the Port Zone

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

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone for the 
navigable waters of the Sector Maryland-National Capital Region Captain 
of the Port (COTP) Zone. It will be enforced, as needed, to ensure the 
safety of these waters in the event of hurricanes, tropical storms, and 
other storms with high winds. The rule provides for actions to be 
completed by industry and vessels within the COTP Zone before and after 
the landfall of hurricanes, tropical storms, and other severe weather 
events threatening the State of Maryland.

DATES: This rule is effective April 19, 2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0834 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 this 
rule, call, or email LCDR Kate Newkirk, Sector Maryland-NCR, Waterways 
Management Division, U.S. Coast Guard; telephone 410-365-8141, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port
MTS Marine Transportation System

II. Background Information and Regulatory History

    Sector Maryland-National Capital Region, whose borders are defined 
in 33 CFR 3.25-15, has the potential to be affected by hurricanes and 
tropical storms on a yearly basis, especially between the months of 
June and

[[Page 19733]]

November. Additionally, severe storms generating high winds and rough 
seas are also common in the winter months. On January 18, 2024, the 
Coast Guard published a notice of proposed rulemaking (NPRM) titled 
``Safety Zone; Storms With High Winds; Sector Maryland-National Capital 
Region Captain of the Port Zone'' (89 FR 3366). There, we stated why we 
had issued the NPRM and we invited comments on our proposed regulatory 
action related to this fireworks display. During the comment period 
that ended February 20, 2024, we received one comment.

III. Legal Authority and Need for the Rule

    As noted above, Maryland is subject to hurricanes and other storms 
generating high winds from year to year. This rule is necessary to 
protect mariners, port infrastructure, and the environment during and 
after these severe weather events. The Coast Guard has authority to 
establish this rule under 46 U.S.C. 70034.

IV. Discussion of Comments, Changes, and the Rule

    The Coast Guard received one comment expressing concern over 
restricting citizens' access to ``high-wind thrill-seeking,'' and 
complains of the rule's failure to account for the ``love for riding 
unreal waves that only a hurricane's high winds could brew.'' However, 
the failure of one mariner to properly secure his boat could result in 
the destruction of another mariner's boat or offshore infrastructure, 
or in damage to the environment. Further, the commenter does not 
explain how we might promote public safety and safeguard the nation's 
marine transportation system without putting restrictions on reckless 
conduct. The final rule is unchanged from that which we proposed in the 
NPRM.
    This safety zone provides for 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 Maryland-
National Capital Region 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).
    Action to be taken by vessels is provided in the language of the 
rule available at the end of this document. In addition, ports and 
waterfront facilities are encouraged to act when specific Port 
Conditions are declared. Under Port Condition WHISKEY, ports and 
waterfront facilities shall remove all debris and secure potential 
flying hazards. Upon a declaration that Port Condition X-RAY is in 
effect, port facilities shall 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 shall continue to operate in 
accordance with any approved Facility Security Plans (as defined in 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 rule, the COTP retains flexibility in controlling and 
reconstituting vessel traffic during periods of heavy weather and 
allows for the expedited resumption of the MTS following such events. 
The safety zone consists of all waters of the territorial seas within 
the Sector Maryland-National Capital Region COTP Zone, as defined in 33 
CFR 3.25-15. Portions of the safety zone might be activated at 
different times, as conditions dictate. Notice of Port Conditions and 
their requirements will be given via Marine Safety Information 
Bulletins (MSIBs) and Broadcast Notice to Mariners (BNMs). 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 NPRM 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, 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 Maryland-National Capital Region 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 rule 
does 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 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. 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.
    The Coast Guard did not receive any comments from the Small 
Business Administration on this rulemaking.

C. Collection of Information

    This 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

[[Page 19734]]

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. If 
you believe this 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 rule would not result 
in such an expenditure, we do discuss the potential 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 would prohibit entry in certain waters of the Sector 
Maryland-National Capital Region 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.

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.  165.521 to read as follows:


Sec.  165.521  Safety Zone[s] Hurricanes, Tropical Storms, and other 
Storms with High Winds; Captain of the Port Zone Maryland-National 
Capital Region.

    (a) Regulated Areas: The following area is a safety zone: All 
navigable waters, as defined in 33 CFR 2.36 within the Captain of the 
Port Zone (COTP) Maryland-National Capital Region, as described in 33 
CFR 3.25-15, 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. As used in this section--
    Captain of the Port means Commander, Coast Guard Sector Maryland 
National Capital Region.
    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. Also, 
vessels must maintain a continuous listening watch on VHF Channel 16. 
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. 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. 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. All oceangoing tank barges and their supporting tugs 
and all self-propelled oceangoing vessels over 500 GT that are unable 
to depart or desire to remain in 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

[[Page 19735]]

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 and waterways 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 or received permission to remain 
in port. 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, 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) Notification. 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: March 14, 2024.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Sector Maryland-National 
Capital Region.
[FR Doc. 2024-05803 Filed 3-19-24; 8:45 am]
BILLING CODE 9110-04-P