[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Proposed Rules]
[Pages 46043-46046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11669]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0251]
RIN 1625-AA00


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

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 Delaware Bay 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 Delaware Bay COTP Zone. 
It would establish actions to be completed by industry and vessels 
within the COTP Zone before and after hurricanes, tropical storms, and 
other storms with high winds threatening the States of Delaware, New 
Jersey, and Pennsylvania make landfall. We invite your comments on this 
proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 27, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2024-0251 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. This notice of proposed rulemaking 
with its plain-language, 100-word-or-less proposed rule summary will be 
available in this same docket.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email LT Owen Mims, Chief Waterways 
Management Division, U.S. Coast Guard; 215-271-4814, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

[[Page 46044]]

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MTS Marine Transportation System
NPRM Notice of proposed rulemaking
NWS National Weather Service
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    Delaware, New Jersey, and Pennsylvania have 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 Coast Guard proposes establishing a safety zone 
to protect mariners, port infrastructure, and the environment during 
and after these severe weather events in the Sector Delaware Bay 
Captain of the Port (COTP) Zone. 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 Delaware Bay COTP Zone during 
hurricanes, tropical storms, and other storms with high winds. This 
safety zone would facilitate planning by establishing actions to be 
completed by local industry and vessels in the COTP zone prior to and 
after landfall of hurricanes, tropical storms, and other storms with 
high winds threatening the States of Delaware, New Jersey, and 
Pennsylvania. Port Conditions (WHISKEY, X-RAY, YANKEE, ZULU, and 
RECOVERY) are standardized Coast Guard terms within the Coast Guard's 
Atlantic Area for states of operation declared by the COTP and 
communicated to port facilities, vessels, and members of the Marine 
Transportation System (MTS). Notice of Port Conditions and their 
requirements would be given via Marine Safety Information Bulletins and 
Broadcast Notice to Mariners.
    Actions to be taken by vessels are provided in the language of the 
proposed rule. In addition, ports and waterfront facilities are 
encouraged to act when specific Port Conditions are declared. Under 
Port Condition WHISKEY, all ports and waterfront facilities shall 
remove all potential flying debris and secure potential flying hazards. 
Upon declaration of Port Condition X-RAY, all ports and waterfront 
facilities shall ensure that all requirements under Port Condition 
WHISKEY are implemented in addition to the removal of all hazardous 
materials, and securing all loose cargo, and cargo equipment. Upon a 
declaration of Port Condition YANKEE, all ports and waterfront 
facilities should ensure that all requirements under Port Condition X-
RAY are implemented, and terminal operators shall cease all cargo 
operations not associated with storm preparations.
    Under the proposed rule, the COTP would retain flexibility in 
exercising control over vessel traffic during periods of heavy weather, 
and the proposed rule 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 Delaware Bay COTP 
Zone, as defined in 33 CFR 3.25-05. Portions of the safety zone might 
be activated at different times, as conditions dictated. 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 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 Delaware Bay 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

[[Page 46045]]

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 the human environment. This proposed rule involves a safety 
zone that would prohibit entry in certain waters of the Sector Delaware 
Bay 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-2024-0251 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.  165.522 to read as follows:


Sec.  165.522  Safety Zone; Hurricanes, Tropical Storms, and other 
Storms with High Winds; Captain of the Port Zone Sector Delaware Bay.

    (a) Regulated Areas. All navigable waters, as defined in 33 CFR 
2.36, within the Captain of the Port Zone (COTP), Sector Delaware Bay, 
as described in 33 CFR 3.25-05, or some portion of those waters, as 
specified and communicated under paragraph (c)(6). Port conditions and 
safety zone activation may vary for different portions of the COTP Zone 
at different times, based on storm conditions and its projected track.
    (b) Definitions. (1) Captain of the Port means Commander, Coast 
Guard Sector Delaware Bay.
    (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.

[[Page 46046]]

    (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 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 depart 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 within the Delaware Bay 
COTP Zone and actions to be taken under Port Condition YANKEE based on 
the trajectory and forecasted storm conditions.
    (4) Port Condition ZULU. When Port Condition ZULU is declared, 
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. The COTP Zone, or portions of it 
designated as regulated areas, as 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, via 
Broadcast Notice to Mariners, Marine Safety Information Bulletins, or 
by on-scene representatives, of where, within the COTP Zone, a declared 
Port Condition is to be in effect.
    (7) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

     Dated: May 21, 2024.
Kate F. Higgins-Bloom,
Captain, U.S. Coast Guard, Captain of the Port, Sector Delaware Bay.
[FR Doc. 2024-11669 Filed 5-24-24; 8:45 am]
BILLING CODE 9110-04-P