Safety Zone; Heavy Weather and Natural or Other Disasters in San Juan Captain of the Port Zone, Sector San Juan, 23911-23914 [2024-07228]
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Federal Register / Vol. 89, No. 67 / Friday, April 5, 2024 / Rules and Regulations
3. Amend § 723.15 by revising
paragraph (b) introductory text to read
as follows:
TABLE 1 TO § 854.14—Continued
■
§ 723.15 Assessment of separate
violations for each day.
*
*
*
*
*
(b) In addition to the civil penalty
provided for in paragraph (a) of this
section, whenever a violation contained
in a notice of violation or cessation
order has not been abated within the
abatement period set in the notice or
order or as subsequently extended
pursuant to section 521(a) of the Act, 30
U.S.C. 1271(a), a civil penalty of not less
than $3,068 will be assessed for each
day during which such failure to abate
continues, except that:
*
*
*
*
*
PART 724—INDIVIDUAL CIVIL
PENALTIES
4. The authority citation for Part 724
continues to read as follows:
■
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201
et seq., and 31 U.S.C. 3701.
5. In § 724.14, revise the first sentence
of paragraph (b) to read as follows:
■
§ 724.14
Amount of individual civil penalty.
*
*
*
*
*
(b) The penalty will not exceed
$20,457 for each violation. * * *
PART 845—CIVIL PENALTIES
6. The authority citation for Part 845
continues to read as follows:
■
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201
et seq., 31 U.S.C. 3701, Pub. L. 100–202, and
Pub. L. 100–446.
7. Amend § 845.14 by revising table 1
to read as follows:
■
§ 845.14 Determination of amount of
penalty.
*
*
*
*
*
TABLE 1 TO § 854.14
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Points
1 ................................................
2 ................................................
3 ................................................
4 ................................................
5 ................................................
6 ................................................
7 ................................................
8 ................................................
9 ................................................
10 ..............................................
11 ..............................................
12 ..............................................
13 ..............................................
14 ..............................................
15 ..............................................
16 ..............................................
17 ..............................................
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15:47 Apr 04, 2024
Dollars
82
164
246
327
410
491
573
651
736
819
899
982
1,061
1,145
1,230
1,309
1,391
Jkt 262001
Points
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
Dollars
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..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
1,475
1,555
1,636
1,720
1,801
1,882
1,963
2,045
2,455
2,864
3,271
3,527
4,091
4,499
4,910
5,319
5,729
6,137
6,547
6,956
7,365
7,773
8,182
8,594
9,002
9,408
9,819
10,228
10,638
11,046
11,457
11,864
12,273
12,681
13,093
13,502
13,912
14,322
14,730
15,137
15,546
15,957
16,365
16,774
17,183
17,593
18,002
18,410
18,821
19,230
19,637
20,047
20,457
8. Amend § 845.15 by revising
paragraph (b) introductory text to read
as follows:
■
§ 845.15 Assessment of separate
violations for each day.
*
*
*
*
*
(b) In addition to the civil penalty
provided for in paragraph (a) of this
section, whenever a violation contained
in a notice of violation or cessation
order has not been abated within the
abatement period set in the notice or
order or as subsequently extended
pursuant to section 521(a) of the Act, 30
U.S.C. 1271(a), a civil penalty of not less
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23911
than $3,068 will be assessed for each
day during which such failure to abate
continues, except that:
*
*
*
*
*
PART 846—INDIVIDUAL CIVIL
PENALTIES
9. The authority citation for Part 846
continues to read as follows:
■
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201
et seq., and 31 U.S.C. 3701.
10. In § 846.14, revise the first
sentence of paragraph (b) to read as
follows:
■
§ 846.14
Amount of individual civil penalty.
*
*
*
*
*
(b) The penalty will not exceed
$20,457 for each violation. * * *
[FR Doc. 2024–07205 Filed 4–4–24; 8:45 am]
BILLING CODE 4310–05–P
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
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
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.
SUMMARY:
To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2023–
0269 in the search box and click
‘‘Search.’’ Next, in the Document Type
ADDRESSES:
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column, select ‘‘Supporting & Related
Material.’’
If
you have questions about this rule, call
or email Lieutenant Commander (LCDR)
Carlos M. Ortega-Pe´rez, the Waterways
Management Division Chief, Sector San
Juan Prevention Department, U.S. Coast
Guard; telephone 787–729–2380, email
Carlos.M.Ortega-Perez@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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
§ Section
U.S.C. United States Code
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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.
While there were no comments, a
similar NPRM was published for the
Key West COTP zone which garnered
1 88
FR 38413.
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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.
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.
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
4 46
2 88
FR 27421.
3 See Final rule titled, ‘‘Safety Zone; Atlantic
Ocean, Key West, FL’’ (88 FR 76133).
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U.S.C. 70001 et seq.
U.S.C. 70101 et seq.
6 33 U.S.C. 1251 et seq.
7 33 U.S.C. 2701 et seq.
5 46
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Federal Register / Vol. 89, No. 67 / Friday, April 5, 2024 / Rules and Regulations
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.
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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
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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 https://
homeport.uscg.mil/port-directory/sanjuan, 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.
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23913
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
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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 § 165.791 to read as follows:
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§ 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.
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(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.
(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 preapproved 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
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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Fmt 4700
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 onscene 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
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2024–0228]
RIN 1625–AA87
Security Zone; Cooper River,
Charleston, SC
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
Sfmt 4700
E:\FR\FM\05APR1.SGM
05APR1
]]>Agencies
[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 [www.gpo.gov]
[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 https://www.regulations.gov, 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
[email protected].
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.
---------------------------------------------------------------------------
\1\ 88 FR 38413.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ 88 FR 27421.
\3\ See Final rule titled, ``Safety Zone; Atlantic Ocean, Key
West, FL'' (88 FR 76133).
---------------------------------------------------------------------------
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 https://homeport.uscg.mil/port-directory/san-juan, 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
