[Federal Register Volume 89, Number 12 (Thursday, January 18, 2024)]
[Proposed Rules]
[Pages 3366-3368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00875]



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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: 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 Maryland-National Capital Region 
Captain of the Port (COTP) Zone, to be enforced whenever hurricanes, 
tropical storms, and other storms with high winds are expected. This 
action is taken to ensure the safety of these waters. It would 
establish actions to be completed by industry and vessels within the 
Zone, both in anticipation of hurricanes, tropical storms, and other 
severe high wind weather events threatening the State of Maryland, and 
after landfall.

DATES: Comments and related material must be received by the Coast 
Guard on or before February 20, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0834 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call, or email LCDR Kate Newkirk, Sector Maryland-
NCR, Waterways Management Division, U.S. Coast Guard; telephone 410-
365-8141, email <a href="/cdn-cgi/l/email-protection#5912382d3c771477173c2e32302b32192c2a3a3e77343035"><span class="__cf_email__" data-cfemail="d59eb4a1b0fb98fb9bb0a2bebca7be95a0a6b6b2fbb8bcb9">[email protected]</span></a>.

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
COTP Captain of the Port
MTS Marine Transportation System

II. Background, Purpose, and Legal Basis

    Maryland 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. The Sector 
Maryland-National Capital Region COTP proposes establishing a safety 
zone to protect mariners, port infrastructure, and the environment 
during and after these severe weather events. 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 Maryland-National Capital Region COTP 
Zone during hurricanes, tropical storms, and other storms with high 
winds. This safety zone would establish actions to be completed by 
local industry and vessels in the COTP zone both prior to landfall of 
hurricanes, tropical storms, and other storms with high winds 
threatening the Maryland-National Capital Region COTP Zone, 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).
    Actions to be taken by vessels is 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, 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 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 proposed rule, the COTP would retain flexibility in 
controlling and reconstituting vessel traffic, during periods of heavy 
weather, and it would allow for the expedited resumption of the MTS 
following such events. The proposed safety zone would consist of all 
waters within 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 
dictated. Notice of Port Conditions and their requirements would be 
given via Marine Safety Information Bulletins (MSIBs) and Broadcast 
Notice to Mariners (BNMs). 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 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 
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

[[Page 3367]]

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 rule 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 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 
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. 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.
    (a) 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-2023-0834 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.
    (b) 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.
    (c) 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:

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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:
    Captain of the Port means Commander, Coast Guard Sector Maryland 
National Capital Region.
    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.
    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.
    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.
    (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 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: January 11, 2024.
David E. O'Connell,
Captain, U.S. Coast Guard, Captain of the Port Sector Maryland-National 
Capital Region.
[FR Doc. 2024-00875 Filed 1-17-24; 8:45 am]
BILLING CODE 9110-04-P


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