2024-05803. 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.

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 [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

§ 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 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 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

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 § 165.521 to read as follows:

§ 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 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.