2023-25461. Safety Zone; Hurricanes, Tropical Storms, and Other Storms With High Winds; Captain of the Port Zone Sector North Carolina

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing a safety zone to be enforced in the event of hurricanes and tropical storms in the Sector North Carolina Captain of the Port (COTP) Zone. This action is necessary to ensure the safety of the waters of the Sector North Carolina COTP Zone. This rule establishes actions to be completed by industry and vessels in the COTP Zone prior to landfall of hurricanes and tropical storms threatening the State of North Carolina.

DATES:

This rule is effective December 18, 2023.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG–2023–0052 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 rule, call or email Petty Officer Ken Farah, 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

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

North Carolina has the potential to be affected by hurricanes and tropical storms on a yearly basis, especially between the months of June and November. The Sector North Carolina Captain of the Port (COTP) proposed establishing a safety zone to provide for the safety of life and for the protection of port infrastructure and of the environment during such storms. In response, on July 14, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Hurricanes and Tropical Storms in Captain of the Port Zone North Carolina” (88 FR 45123). 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 August 14, 2023, we received no comments.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP of Sector North Carolina has determined that the establishment of a safety zone to be enforced in case of hurricanes and heavy weather in North Carolina is necessary to ensure the safety of the waters of the COTP Zone Sector North Carolina. This safety zone establishes actions to be completed by local industry and vessels in the COTP zone prior to landfall of hurricanes and heavy weather threatening the State of North Carolina. The safety zone consists of all navigable waters of the United States in the Sector North Carolina COTP Zone, as defined in 33 CFR 3.25–20. Portions of the safety zone may be activated at different times, as conditions dictate.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published July 14, 2023. While there were no comments to the proposed rule, the following change was made to this rule. The name of the rule was changed to “Safety Zone; Hurricanes and Heavy Weather in Captain of the Port Zone Sector North Carolina” in order to harmonize this to similar rules within U.S. Coast Guard District 5. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This action is necessary to ensure the safety of the waters of the COTP Zone Sector North Carolina as it establishes actions to be completed by local industry and vessels in the COTP zone prior to landfall of hurricanes and tropical storms threatening the State of North Carolina. This safety zone consists of all navigable waters of the United States in the Sector North Carolina COTP Zone, as defined in 33 CFR 3.25–20. Portions of the safety zone may be activated at different times, as conditions dictate.

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 necessity to protect life and port infrastructure during hurricanes and tropical storms. The scope of the regulation is narrow and will only apply when a hurricane or tropical storm impacts the navigable waters of the Sector North Carolina Captain of the Port Zone. These events are infrequent and of relatively short duration. Regulatory restrictions will be lifted as soon as practicable following the passage of a named storm.

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 prohibits entry in certain waters of the Sector North Carolina 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

• Marine safety
• Navigation
• 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 § 165.562 to read as follows:

§ 165.562

Safety Zone; Hurricanes, Tropical Storms, and other Storms with High Winds; Captain of the Port Zone Sector North Carolina.

(a) Regulated Areas. All navigable waters of the United States within Sector North Carolina COTP Zone as described in 33 CFR 3.25–20, during specified port conditions. Port conditions and safety zone activation may vary for different regions of the regulated area at different times, based on storm conditions and projected track.

(b) Definitions. (1) Captain of the Port means the Commander, Coast Guard Sector North Carolina.

(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) from a tropical or hurricane force storm are predicted to make landfall at the Port of Wilmington or Port of Morehead City 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) from a tropical or hurricane force storm are predicted to make landfall at the port 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) from a tropical or hurricane force storm are predicted to make landfall at the port 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) from a tropical or hurricane force storm are predicted to make landfall at the port 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) from a tropical or hurricane force storm are no longer predicted for the designated area. This port condition remains in effect until the regulated areas are deemed safe and reopened to normal operations.

(c) Regulations—(1) Port Condition WHISKEY. All vessels must exercise due diligence in preparation for potential storm impacts. Ports and waterfront facilities are encouraged to remove all debris and secure potential flying hazards. All self-propelled oceangoing vessels over 500 gross tons (GT), all oceangoing tank barges and their supporting tugs, and all tank barges over 200 GT wishing to remain in port should seek approval from the COTP prior to Port Condition X-Ray.

(2) Port Condition X–RAY. All vessels and port facilities are encouraged to ensure potential flying debris and hazardous materials are removed or secured. All self-propelled oceangoing vessels over 500 gross tons (GT), all oceangoing tank barges and their supporting tugs, and all tank barges over 200 GT without COTP approval to remain in port must depart prior to the setting of Port Condition Yankee. Vessels with COTP permission to remain in port must implement their approved mooring arrangement.

(3) Port Condition YANKEE. Affected ports are closed to all inbound vessel traffic. All self-propelled oceangoing vessels over 500 gross tons (GT), all oceangoing tank barges and their supporting tugs, and all tank barges over 200 GT must have departed designated ports within the Sector North Carolina COTP zone unless they have received COTP approval to remain in port.

(4) Port Condition ZULU. Affected ports and waterways are closed to all vessel traffic unless specifically authorized by the COTP or representative. Cargo operations are suspended, including bunkering and lightering. The COTP may grant cargo transfer waivers unless a 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 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 designated representative.

(6) Safety Zones Notice. Coast Guard Sector North Carolina will attempt to notify the maritime community of periods during which these safety zones will be in effect via Broadcast Notice to Mariners, Marine Safety Information Broadcast, or by on-scene designated representatives.

(7) Regulated Area Notice. The Coast Guard will provide notice of the regulated area via Broadcast Notice to Mariners, Marine Safety Information Broadcast, or by on-scene designated representatives.

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

Timothy J. List,

Captain, U.S. Coast Guard, Captain of the Port, Sector North Carolina.