Rule2024-07228
Safety Zone; Heavy Weather and Natural or Other Disasters in San Juan Captain of the Port Zone, Sector San Juan
Primary source
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Published
April 5, 2024
Effective
May 6, 2024
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard is establishing a safety zone to be enforced in the event of hurricanes, tropical storms, and other disasters in the San Juan Captain of the Port (COTP) Zone. This action is necessary to ensure the safety of the waters of the San Juan COTP zone. This regulation establishes actions to be completed by parties operating on and around the navigable waterways of the San Juan COTP zone. This may include the owners and operators, and those in management and control positions of regulated facilities, waterfront facilities, and vessels, prior to landfall of hurricanes, tropical storms, and other disasters threatening the San Juan COTP Zone.
Full Text
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<title>Federal Register, Volume 89 Issue 67 (Friday, April 5, 2024)</title>
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[Federal Register Volume 89, Number 67 (Friday, April 5, 2024)]
[Rules and Regulations]
[Pages 23911-23914]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07228]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2023-0269]
RIN 1625-AA00
Safety Zone; Heavy Weather and Natural or Other Disasters in San
Juan Captain of the Port Zone, Sector San Juan
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a safety zone to be enforced
in the event of hurricanes, tropical storms, and other disasters in the
San Juan Captain of the Port (COTP) Zone. This action is necessary to
ensure the safety of the waters of the San Juan COTP zone. This
regulation establishes actions to be completed by parties operating on
and around the navigable waterways of the San Juan COTP zone. This may
include the owners and operators, and those in management and control
positions of regulated facilities, waterfront facilities, and vessels,
prior to landfall of hurricanes, tropical storms, and other disasters
threatening the San Juan COTP Zone.
DATES: This rule is effective May 6, 2024.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2023-0269 in the search box and click ``Search.'' Next, in the Document
Type
[[Page 23912]]
column, select ``Supporting & Related Material.''
FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call or email Lieutenant Commander (LCDR) Carlos M. Ortega-
P[eacute]rez, the Waterways Management Division Chief, Sector San Juan
Prevention Department, U.S. Coast Guard; telephone 787-729-2380, email
<a href="/cdn-cgi/l/email-protection#dc9fbdaeb0b3aff291f293aea8b9bbbdf18cb9aeb9a69ca9afbfbbf2b1b5b0"><span class="__cf_email__" data-cfemail="bffcdecdd3d0cc91f291f0cdcbdad8de92efdacddac5ffcaccdcd891d2d6d3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
COTP Captain of the Port
CFR Code of Federal Regulations
CWA Clean Water Act
DHS Department of Homeland Security
FR Federal Register
MTSA Maritime Transportation Security Act
NPRM Notice of proposed rulemaking
OPA90 The Oil Pollution Act of 1990
PWSA Ports and Waterways Safety Act
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
During the hurricane season Puerto Rico and the Virgin Islands face
different security and life-threatening challenges that directly affect
the safety and continuity of operations of the Sector's waterways and
port facilities. To ensure the safety of the port and life on navigable
waters of the United States this regulation restricts movement of
vessels and barges over 500 gross tons (GT) in the event of heavy
weather conditions or any natural or other disasters anticipated to
affect the San Juan Captain of the Port (COTP) zone. The COTP has
determined that reduced or restricted visibility and gale force winds
which may occur during heavy weather periods and other disasters
affecting Puerto Rico and the U.S. Virgin Islands, constitutes a safety
concern for the navigable waters and waterfront facilities within the
San Juan COTP zone.
In response, on June 13, 2023, the Coast Guard published a notice
of proposed rulemaking (NPRM) titled, ``Safety Zone: Heavy Weather and
Natural or Other Disasters in San Juan Captain of the Port Zone, San
Juan, PR.'' \1\ There we stated why we issued the NPRM and invited
comments on our proposed regulatory action related to this heavy
weather or other disasters. During the comment period that ended June
29, 2023, we received no comments.
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\1\ 88 FR 38413.
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While there were no comments, a similar NPRM was published for the
Key West COTP zone which garnered two public comments.\2\ The Coast
Guard made changes to the regulatory text in the final rule for the Key
West COTP zone \3\ for clarity in response to the comments received. In
this final rule, the Coast Guard made similar changes in the regulatory
text for consistency with the Key West COTP zone. See 33 CFR 165.707.
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\2\ 88 FR 27421.
\3\ See Final rule titled, ``Safety Zone; Atlantic Ocean, Key
West, FL'' (88 FR 76133).
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III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The purpose of this rule is to protect the general maritime
public, to include vessel owners, vessel operators, and those in
management and control positions related to facilities and waterways
regulated by the Coast Guard, along with those in management and
control positions related to any land or shore area immediately
adjacent to those waterways in the San Juan COTP zone, in the event of
a hurricane, tropical storm, and other natural disasters.
IV. Discussion of Comments, Changes, and the Rule
As a general matter, this rule is intended to inform the general
maritime public, to include vessel owners and operators, regulated
facilities, and waterfront facilities of the Coast Guard's expectations
in the event of a hurricane, tropical storm, or other disaster, thereby
expediting the enforcement of the safety zone, and providing more
advanced notice of the Coast Guard's expectations in the event of a
hurricane, tropical storm, or other natural disaster. This rule is also
intended to provide vessel owners and operators, along with the owners
and operators of regulated facilities and waterfront facilities with a
deeper understanding of how the Coast Guard intends to handle extreme
weather-related events so they can plan accordingly.
As noted in the previous section, we received no comments on our
NPRM published June 13, 2023. However, due to the thorough review done
during the similar NPRM published for the Sector Key West COTP zone, we
have determined that there are several changes in the final rule's
regulatory text for 33 CFR 165.791 as follows.
To clarify some potential confusion, the Coast Guard is adding two
definitions for ``regulated facilities,'' and ``waterfront
facilities,'' in paragraph(a). The Coast Guard has the authority to
regulate facilities and land structure or shore area immediately
adjacent to navigable waters under certain, specific statutory and
regulatory frameworks. We are adding a definition for ``regulated
facilities'' to clarify the regulated facilities covered by this rule
are those regulated under the Ports and Waterways Safety Act,\4\
Maritime Transportation and Security Act (MTSA),\5\ Clean Water Act,\6\
and the Oil Pollution Act of 1990.\7\ These statutes give the Coast
Guard the authority and jurisdiction to take certain actions on certain
regulated facilities that have a maritime nexus. We are adding a
definition for ``waterfront facilities'' which will include any land
structure or shore area immediately adjacent to the navigable waters of
the San Juan COTP zone.
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\4\ 46 U.S.C. 70001 et seq.
\5\ 46 U.S.C. 70101 et seq.
\6\ 33 U.S.C. 1251 et seq.
\7\ 33 U.S.C. 2701 et seq.
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When the safety zone is subject to enforcement it will be
determinate of conditions set forth in paragraphs (c)(1) through
(c)(5). In paragraphs (c)(1), we are deleting ``port facilities'' and
adding in its place, ``regulated facilities and waterfront facilities''
for consistency as definitions for these terms have been added in
paragraphs (b)(6) and (b)(7). In the event Port Condition WHISKEY is
set, all vessels, regulated facilities, and waterfront facilities
within the San Juan COTP zone would have to comply with the applicable
regulations in paragraph (c)(1). Additionally, in paragraph (c)(1), we
removed the sentence, ``Vessels wishing to remain in port are required
to submit an application to the COTP prior to setting Port Condition X-
Ray.'' In its place, we are adding the sentence, ``Oceangoing vessels
greater than 500 gross tons (GT) intending to remain in the port during
Port Condition Whiskey must contact the San Juan COTP prior to the
setting of port condition X-Ray.'' We are taking this action to prevent
vessel owners and operators from having to generate additional
documentation.
In paragraphs (c)(2), we are deleting ``port facilities'' and
adding in its place, ``regulated facilities and waterfront facilities''
for consistency as definitions for these terms have been added in
paragraphs (a)(7) and (a)(8). In the event Port Condition X-RAY is set,
all vessels, regulated facilities, and waterfront facilities within the
San Juan COTP zone would have to comply with the applicable regulations
in paragraph (c)(2). Additionally, in paragraph (c)(2), we are deleting
the sentence, ``The COTP may require additional precautions to ensure
the safety of the ports and waterways'' because it is
[[Page 23913]]
overly vague and may cause undue confusion for owners and operators of
vessels and regulated facilities.
In paragraph (c)(3), we clarified we are only limiting cargo
operations at ``regulated facilities.'' We also removed some the
language that went into specifics of cargo operations. Removing the
language made the regulatory text more succinct, as the initial
language contained unnecessary redundancies. We also clarified that
only facilities regulated under the MTSA will be required to operate in
accordance with their security plan.
In paragraph (c)(4), we are removing the words ``are suspended''
and replacing it with, ``must cease all cargo operations'' because the
phrase ``are suspended'' may be confusing in this context. By using the
phrase ``must cease all cargo operations'' we are making it clear to
the regulated parties that cargo operations must stop when Port ZULU is
set.
In paragraph (c)(7), we are revising the text to clarify that the
Coast Guard Sector San Juan will notify the maritime community, ``to
the furthest extent practicable'' of the periods which the safety zone
in paragraph (a) will be subject to enforcement via Broadcast Notice to
Mariners or by on-scene designated representatives.
Lastly, we are making non-substantive editorial changes and
revising terminology for consistency throughout the final rule
regulatory text.
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
reasons: (1) Vessel traffic and facilities will be impacted by this
rule only during limited times while heavy weather or other disaster is
expected to impact the Sector San Juan COTP zone; (2) vessel traffic
would be secured only during port conditions Yankee and Zulu, and only
in port areas potentially affected by gale force winds; and (3) the
Coast Guard would issue updates on <a href="https://homeport.uscg.mil/port-directory/san-juan">https://homeport.uscg.mil/port-directory/san-juan</a>, Broadcast Notice to Mariners, and during Port
Coordination meetings.
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 of limited duration implemented during heavy weather events
e.g., tropical storms, hurricanes, or other natural disasters where a
safety zone implementation is deemed appropriate by the COTP. It is
categorically
[[Page 23914]]
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
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. 165.791 to read as follows:
Sec. 165.791 Safety Zones; Heavy Weather and Natural or Other
Disasters in San Juan Captain of the Port Zone.
(a) Location. The following area is a safety zone: All navigable
waters, as defined in 33 CFR 2.36, within Sector San Juan Captain of
the Port (COTP) zone, San Juan, Puerto Rico, as described in 33 CFR
3.35-25, during specified conditions.
(b) Definitions. As used in this section:
(1) Designated representative means a Coast Guard Patrol Commander,
including a Coast Guard coxswain, petty officer, or other officer
operating a Coast Guard vessel and a Federal, State, and local officer
designated by or assisting the COTP San Juan in the enforcement of the
safety zone.
(2) Gale force winds means sustained surface winds, or frequent
gusts, of 34 knots (39 mph) or more usually seen in coastal regions.
(3) Port Condition WHISKEY means a condition set by the COTP when
gale force winds are expected to make landfall at the port within 72
hours.
(4) Port Condition X-RAY means a condition set by the COTP when
gale force winds are expected to make landfall at the port within 48
hours.
(5) Port Condition YANKEE means a condition set by the COTP when
gale force winds are expected to make landfall at the port within 24
hours.
(6) Port Condition ZULU means a condition set by the COTP when gale
force winds are expected to make landfall at the port within 12 hours.
(7) Regulated facilities means shoreside facilities regulated by
the Coast Guard under the Ports and Waterways Safety Act,\8\ Maritime
Transportation and Security Act,\9\ Clean Water Act,\10\ and the Oil
Pollution Act of 1990,\11\ and regulations in 33 CFR parts 105, 154,
156, and 158.
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\8\ 46 U.S.C. 70001 et seq.
\9\ 46 U.S.C. 70101 et seq.
\10\ 33 U.S.C. 1251 et seq.
\11\ 33 U.S.C. 2701 et seq.
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(8) Waterfront facilities means any land structure or shore area
immediately adjacent to the navigable waters of the San Juan COTP zone.
(c) Regulations. (1) Port Condition WHISKEY. All vessels, regulated
facilities, and waterfront facilities within the San Juan COTP zone
must exercise due diligence in preparation for potential storm impacts.
All regulated facilities and waterfront facilities must begin removing
all debris and securing potential flying hazards. Oceangoing vessels
greater than 500 gross tons (GT) must make plans to depart no later
than the setting of Port Condition Yankee unless authorized by the
COTP. Oceangoing vessels greater than 500 GT intending to remain in
port must contact the COTP prior to the setting port condition X-Ray.
(2) Port Condition X-RAY. All vessels, regulated facilities, and
waterfront facilities within the San Juan COTP zone 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 greater than 500 GT 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. Regulated facilities
must prepare to terminate all cargo operations.
(3) Port Condition YANKEE. Affected ports are closed to inbound
vessel traffic. All oceangoing vessels greater than 500 GT must have
departed designated ports within the San Juan COTP zone. Regulated
facilities must terminate all cargo operations, not associated with
storm preparations, unless specifically authorized by the COTP. All
MTSA regulated facilities must continue to operate in accordance with
their approved Facility Security Plans and comply with the requirements
of the MTSA.
(4) Port Condition ZULU. The port is closed to all vessel traffic
except as specifically authorized by the COTP. Regulated facilities
must cease all cargo operations, including bunkering and lightering.
Waivers may be granted except for when Cargo of Particular Hazard or
Certain Dangerous Cargo are involved.
(5) Emergency Regulation for Other Disasters. Any natural or other
disasters that are anticipated to affect the Sector San Juan COTP zone
will result in the prohibition of facility operations and vessel
traffic transiting or remaining in the affected port.
(6) Transit requests. Persons and vessels desiring to enter,
transit through, anchor in, or remain in the regulated area may contact
the COTP via telephone at (787) 289-2041, or a designated
representative via VHF radio on channel 16, to request authorization.
If authorization to enter, transit through, anchor in, or remain in the
regulated area is granted by the COTP or a designated representative,
all persons and vessels receiving such authorization must comply with
the instructions of the COTP or a designated representative.
(7) Safety zones notice. Coast Guard Sector San Juan will notify
the maritime community, to the furthest extent practicable, of the
periods during which the safety zone described in paragraph (a) will be
subject to enforcement via Broadcast Notice to Mariners or by on-scene
designated representatives.
Dated: April 1, 2024.
Robert M. Pirone,
Captain, U.S. Coast Guard, Alternate Captain of the Port, Sector San
Juan.
[FR Doc. 2024-07228 Filed 4-4-24; 8:45 am]
BILLING CODE 9110-04-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.