[Federal Register Volume 89, Number 175 (Tuesday, September 10, 2024)]
[Rules and Regulations]
[Pages 73291-73293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20391]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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.

DATES: This rule is effective October 10, 2024.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2024-0251 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 
proposed rulemaking, call or email LCDR 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
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 Information and Regulatory History

    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. On May 28, 2024, 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 
Sector Delaware Bay (89 FR 46043). 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 27, 2024, 
we received two comments.

III. Legal Authority and Need for Rule

    As noted above, Delaware, New Jersey, and Pennsylvania are 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 is issuing this rule under authority in 46 U.S.C. 70034.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published May 
28, 2024. One comment expressed support for the rule and did not 
recommend any changes. The other did not address the subject matter of 
the rule. We are finalizing the regulatory text of this rule without 
changes from the text proposed in the NPRM.
    This rule establishes 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 provides for 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 will 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 
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 rule, the COTP retains flexibility in exercising control 
over vessel traffic during periods of heavy weather, and the rule 
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 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 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

[[Page 73292]]

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 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 Sector 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 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 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 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. 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.  165.522 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) of this section. 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.

[[Page 73293]]

    (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.
    (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, 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: Sept. 3, 2024.
Kate F. Higgins-Bloom,
Captain, U.S. Coast Guard, Captain of the Port, Sector Delaware Bay.
[FR Doc. 2024-20391 Filed 9-9-24; 8:45 am]
BILLING CODE 9110-04-P