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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2023-0380]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, Department of Homeland Security (DHS).

# ACTION:

Final rule.

# SUMMARY:

The Coast Guard is establishing a permanent safety zone to be enforced in the event of hurricanes, tropical storms, and other disasters in southeast Texas and southwest Louisiana. This action is necessary to ensure the safety of the waters of the Port Arthur Captain of the Port (COTP) zone Port Arthur, TX, prior to, during and following hurricanes, tropical storms and other disasters. This regulation establishes actions to be completed by industry and vessels in the COTP zone prior to landfall of hurricanes, tropical storms, and other disasters threatening Port Arthur, TX.

# DATES:

This rule is effective September 21, 2023.

# ADDRESSES:

                        To view documents mentioned in this preamble as being available in the docket, go to                         *https://www.regulations.gov,*                         type USCG-2023-0380 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 on this rule, call or                               ( print page 57007)                            email Mr. Douglas Hendrix, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email                         *douglas.g.hendrix2@uscg.mil.*

# SUPPLEMENTARY INFORMATION:

## I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section 

U.S.C. United States Code

## II. Background Information and Regulatory History

Southeast Texas and southwest Louisiana has the potential to be affected by hurricanes, tropical storms and other disasters on a yearly basis, especially between the months of June and November.

On May 31, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Hurricanes, Tropical Storms, and Other Disasters in Southeast Texas and Southwest Louisiana.” 88 FR 34797. 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 15, 2023, we received two (2) comments.

## III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034. The purpose of this rulemaking is to protect mariners, port infrastructure and the environment during and after extreme weather and other natural disasters.

## IV. Discussion of Comments, Changes, and the Rule

As noted above, we received two comments on our NPRM published May 31, 2023. One comment received was supportive of the rule. The second comment suggested that (1) the regulatory text should be clearer in identifying the geographic area(s) where Port Condition requirements would be applicable; and (2) that the COTP should require identification and notification of “marine vessels, offshore rigs, barges, etc.” We concur with the first suggestion and have modified the language in paragraphs (c)(1), (2), and (7) of the regulatory text to be clearer. With regard to the second suggestion, we do not concur that additional language is necessary. The regulatory text provides the COTP sufficient authority to address situational circumstances without establishing vague affirmative requirements.

This rule establishes actions to be completed by local industry and vessels in the COTP zone prior to landfall of hurricanes, tropical storms, and other disasters threatening the COTP zone and describes the actions a COTP may take to restrict access to hazardous areas in the aftermath of these events. The safety zone consists of all navigable waters of the Port Arthur COTP zone, as prescribed in 33 CFR 3.40-28(b). 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 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 following: (1) Vessel traffic and facilities would be impacted by this rule only during limited times while heavy weather or other disaster is expected to impact the Port Arthur COTP zone; (2) vessel traffic would be secured only during port conditions Yankee, Zulu, and Recovery and only in port areas affected by gale force winds; and (3) the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, and this rule would allow vessels to seek permission to remain in port.

### 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                           ( print page 57008)                        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 prohibits entry in certain waters of the Port Arthur COTP Zone for the duration needed to ensure safe transit of vessels and industry post hurricane, post storm, and post emergency. 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

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.

2. Add § 165.804 to read as follows: 

§ 165.804 

                            (a)                             *Regulated areas.*                             All navigable waters within the Port Arthur Captain of the Port (COTP) Zone, MSU Port Arthur, TX, as described in 33 CFR 3.40-28(b), during specified conditions.                        

                            (b)                             *Definitions.*                             (1)                             *Designated representative*                             means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the COTP Port Arthur, in the enforcement of the regulated areas.                        

                            (2)                             *Port Condition WHISKEY*                             means a condition set by the COTP when weather advisories indicate sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 72 hours.                        

                            (3)                             *Port Condition X-RAY*                             means a condition set by the COTP when weather advisories indicate sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 48 hours.                        

                            (4)                             *Port Condition YANKEE*                             means a condition set by the COTP when weather advisories indicate that sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 24 hours.                        

                            (5)                             *Port Condition ZULU*                             means a condition set by the COTP when weather advisories indicate that sustained gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 12 hours.                        

                            (6)                             *Port Condition RECOVERY*                             means the condition set when weather advisories indicate that sustained gale force winds from a tropical hurricane force storm are no longer predicted for the designated area. This port condition remains in effect until the regulated areas are safe and reopened to normal operations.                        

                            (c)                             *Regulations*                            —(1)                             *Port Condition WHISKEY.*                             All vessels and port facilities in designated areas must exercise due diligence in preparation for potential storm impacts. Ports and waterfront facilities must begin removing all debris and securing potential flying hazards. Oceangoing vessels 500 gross tons (GT) and above must make plans to depart no later than the setting of Port Condition Yankee unless authorized by the COTP. Vessels wishing to remain in port are required to submit a Notice of Intent to Remain In Port to the COTP prior to setting Port Condition X-Ray.                        

                            (2)                             *Port Condition X-RAY.*                             All vessels and port facilities in designated areas must ensure that potential flying debris is removed or secured. Hazardous materials/pollution hazards must be secured in a safe manner and away from waterfront areas. Vessels over 500GT without an approval to remain in port must depart prior to the setting of Port Condition YANKEE. Vessels with the COTP's permission to remain in port must implement their pre-approved mooring arrangement. Terminal operators must prepare to terminate all cargo operations. The COTP may require additional precautions to ensure the safety of the ports and waterways.                        

                            (3)                             *Port Condition YANKEE.*                             Affected ports are closed to inbound vessel traffic. All oceangoing vessels greater than 500 Gross Tons must depart designated ports prior to the setting of Port Condition ZULU. Terminal operators must terminate all cargo operations not associated with storm preparations. Cargo operations associated with storm preparations include moving cargo within or off the port for securing purposes, port/facility equipment preparations, and similar activities, but do not include moving cargo onto the port or vessel loading/discharging operations unless specifically authorized by the COTP. All facilities must continue to operate in accordance with approved Facility Security Plans and comply with the requirements of the Maritime Transportation Security Act.                        

                            (4)                             *Port Condition ZULU.*                             Designated areas are closed to all vessel traffic except those specifically authorized by the COTP. Cargo operations are suspended, including bunkering and lightering. Waivers may be granted unless Cargo of Particular Hazard or Certain Dangerous Cargo is involved.                        

                            (5)                             *Port Condition RECOVERY.*                             Designated areas are closed to all commercial traffic and recreational vessels 65-feet in length and greater. Based on assessments of channel                                   ( print page 57009)                                conditions, navigability concerns, and hazards to navigation, the COTP may permit vessel movements with restrictions. Restrictions may include, but are not limited to, preventing 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 designated representative.                        

                            (6)                             *Safety zones notice.*                             The Coast Guard COTP will notify the maritime community of periods during which these safety zones will be in effect via Broadcast Notice to Mariners and Marine Safety Information Bulletin or by on-scene designated representatives.                        

                            (7)                             *Regulated area notice.*                             The Coast Guard will provide notice of the designated ports and/or waterways within the regulated area covered by each Port Condition via Broadcast Notice to Mariners, Marine Safety Information Bulletin or by on-scene designated representatives.                        

                            (8)                             *Exception.*                             This section does not apply to authorized law enforcement agencies operating within the regulated area.                        

Dated: August 15, 2023.

Anthony R. Migliorini,

Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port Arthur.

[FR Doc. 2023-18066 Filed 8-21-23; 8:45 am]

BILLING CODE 9110-04-P