2024-21116. Safety Zone; Severe Weather, Natural and Other Disasters in Southeast Texas

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Department of Homeland Security

Coast Guard

1. 33 CFR Part 165
2. [Docket Number USCG-2024-0276]
3. RIN 1625-AA00

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for all navigable waters within the Captain of the Port Sector Houston-Galveston (COTP) zone to be enforced in the event of severe weather or natural and other disasters in southeast Texas. This action is necessary for the safety of life on these navigable waters within the COTP zone.

DATES:

This rule is effective without actual notice from September 19, 2024 through 11:59 p.m. on November 30, 2024. For the purposes of enforcement, actual notice will be used from September 11, 2024 until September 19, 2024.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2024-0276 in the search box and click “Search.” Next, in the Document Type column, select “Supporting & Related Material.”

( print page 76732)

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rule, call or email Chief Petty Officer Marine Science Technician Anthony W. Booth, Sector Houston-Galveston Waterways Management Division, 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

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule under authority in 5 U.S.C. 553(b)(B). This statutory provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because prompt action is needed to respond to the potential safety hazards associated with the fast-moving formation of Tropical Storm Francine. The Captain of the Port, Sector Houston-Galveston (COTP) has determined reduced or restricted visibility and storm force winds, which may occur during tropical storms, hurricanes and other disasters, constitutes a safety concern for persons and vessels within the COTP zone during the nationally published hurricane season extending through November 30, 2024. The COTP is establishing a temporary safety zone to provide for the safety of life during and subsequent to such storms or incidents. It is impracticable to publish an NPRM because we must establish this safety zone by September 11, 2024 in response to Tropical Storm Francine

Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because prompt action is needed to respond to the safety hazards associated with emergency and recovery efforts during severe weather, natural and other disasters within the COTP zone.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that potential hazards associated with the lack of Aids to Navigation and unknown waterway conditions can pose a hazard to transiting vessels due to the effects of Tropical Storm Francine and future severe weather, natural and other disasters. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the temporary safety zone while the aids to navigation are being repaired and the waterway is being surveyed.

IV. Discussion of the Rule

The temporary safety zone will cover all navigable waters within the COTP zone for the ports of Houston, Galveston, Freeport, Texas City and portions of the GIWW between MM-319.5 and MM-442. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters until 11:59 p.m. on November 30, 2024 as needed by COTP Houston-Galveston. During enforcement, no vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative when the zone is activated due to severe weather response.

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 size, location, and duration of the temporary safety zone. This action involves a temporary safety zone to protect personnel, vessels, and the marine environment from potential hazards created by damaged navigational aids and silting resulting from Tropical Storm Francine.

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 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 temporary 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 because commercial vessels will still have availability to transit the channel but in a controlled and safe manner to facilitate the safe flow of vessel traffic.

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.

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, ( print page 76733) 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 temporary safety zone facilitating the safety and security of the Houston-Galveston COTP zone's marine transportation system operations, including but not limited to vessel traffic and facility operations. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination will be 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.T08-0276 to read as follows:

§ 165.T08-0276

Safety Zone; Severe Weather, Natural and other Disasters in Southeast Texas.

(a) Regulated areas. All navigable waters within the Houston-Galveston Captain of the Port (COTP) Zone, Sector Houston-Galveston, TX, as described in 33 CFR 3.40-28(a), 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 Houston-Galveston, 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) or greater from a weather event 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) or greater from a weather event 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) or greater from a weather event 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) or greater from a weather event 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 weather event 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 or moved to port restoration.

(7) Emergency restrictions for other disasters means any severe weather, natural and/or other disasters that are anticipated to or has affected the Sector Houston-Galveston COTP zone may result in the prohibition of facility operations and/or commercial vessel traffic transiting or remaining in the affected port.

(c) Regulations —(1) Port Condition WHISKEY. All vessels and port facilities in designated areas must exercise due diligence in preparation for potential storm impacts. Vessels, ports and waterfront facilities must initiate vessel and facility severe weather plans. Oceangoing vessels 500 gross tons (GT) and above must make plans for departure unless authorized by the COTP. Commercial self-propelled vessels 500 gross tons (GT) and above requesting to remain in port shall submit a declaration of intent to remain in port to the COTP prior to setting Port Condition X-Ray. Vessels will not be permitted to remain in Bolivar Anchorage if Condition Yankee is set. The COTP may make modifications as required.

(2) Port Condition X-RAY. Departing orders for vessels without approval to remain in port shall commence. Commence clearing vessels from Bolivar Anchorage. Suspend bunkering and lightering operations at the COTP's discretion. Suspend all cargo transfers when winds reach 40 mph. Disconnect transfer hoses and arms when winds reach 50 mph. Smaller vessels shall seek shelter in preparation for possible port closure. All containers stored near flood-prone areas should be moved. The COTP may make modifications as required.

(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. Inland tows are to be properly moored. Suspend ( print page 76734) bunkering and lightering operations. Suspend all cargo transfers. Disconnect transfer hoses and arms. Smaller vessels shall seek shelter in preparation for possible port closure. Regulated facilities shall secure or remove all missile hazards, dangerous cargo, containers and/or pallet stacks. Regulated facilities shall press up storage tanks to reduce wind damage. All facilities must continue to operate in accordance with approved Facility Security Plans and comply with the requirements of the Maritime Transportation Security Act. The COTP may make modifications as required.

(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. The COTP may make modifications as required.

(5) Emergency restrictions for other disasters. Any severe weather, natural and/or other disasters that are anticipated to or has affected the Sector Houston-Galveston COTP zone may result in the prohibition of facility operations and vessel traffic transiting or remaining in the affected port.

(6) Port Condition RECOVERY. Designated areas are closed to all commercial traffic and recreational 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 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.

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

(8) 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 or Emergency Restrictions via Broadcast Notice to Mariners, Marine Safety Information Bulletin or by on-scene designated representatives.

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

(d) Enforcement periods. This section is subject to enforcement from September 11, 2024, through 11:59 p.m. on November 30, 2024 and will be enforced when Port Condition “Whiskey” has been set, or at the discretion of the COTP if conditions deem it necessary until Port Condition RECOVERY is concluded. The Coast Guard will notify the maritime community of periods of enforcement via Broadcast Notice to Mariners and Marine Safety Information Bulletin or by on-scene designated representatives.

Keith. M. Donohue,

CAPT, U.S. Coast Guard, Captain of the Port Sector Houston-Galveston.