[Federal Register Volume 72, Number 150 (Monday, August 6, 2007)]
[Rules and Regulations]
[Pages 43535-43537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15160]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. COTP San Juan 05-007]
RIN 1625-AA87


Security Zone: HOVENSA Refinery, St. Croix, United States Virgin 
Islands

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a security zone in the 
vicinity of the HOVENSA refinery facility on St. Croix, U.S. Virgin 
Islands. The security zone is needed for national security reasons to 
protect the public and the HOVENSA facility from potential subversive 
acts. This interim rule excludes entry into the security zone by all 
vessels without permission of the U.S. Coast Guard Captain of the Port 
San Juan or a scheduled arrival in accordance with the Notice of 
Arrival requirements of 33 CFR part 160, subpart C.

DATES: This interim rule is effective August 6, 2007. Comments and 
related material must reach the Coast Guard on or before September 5, 
2007.

ADDRESSES: You may mail comments and related material to Sector San 
Juan, 5 Calle La Puntilla, San Juan, PR 00901. Sector San Juan 
Waterways Management maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be available for inspection or 
copying at Resident Inspections Office in St. Croix, United States 
Virgin Island between 7:30 a.m. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant A.M. Schmidt of Sector San 
Juan, Prevention Operations Department at (787) 289-2086.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Juan 05-007), indicate the specific section of this document to which 
each comment applies, and give the reason for each comment. Please 
submit all comments and related material in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know they reached us, please enclose a stamped, self-addressed 
postcard or envelope. We will consider all comments and material 
received during the comment period. We may change this interim rule in 
view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Lieutenant A.M. Schmidt of Sector 
San Juan, Prevention Operations Department at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Regulatory Information

    On February 10, 2005, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone: HOVENSA Refinery, St. Croix, United 
States Virgin Islands'' in the Federal Register (70 FR 7065). We 
received no letters commenting on the proposed rule. No public meeting 
was requested and none was held. We decided to publish this interim 
rule instead of a final rule because we have determined it was 
necessary make a slight revision from the rule proposed in the above-
mentioned notice of proposed rulemaking. Since the public did not have 
an opportunity to comment on the revision, we are issuing this interim 
rule with a request for comments before we create a final permanent 
rule.
    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. Given, the prior notice of 
proposed rulemaking, the current request for comments in this interim 
rule and the highly volatile nature of the substances at the HOVENSA 
refinery, to which it has the potential of being a terrorist target, it 
would be contrary to the public interest to delay the effective date of 
this regulation.

 Background and Purpose

    The Coast Guard has published similar temporary security zones in 
the Federal Register at 67 FR 2332, January 17, 2002; 67 FR 57952, 
September 13, 2002; 68 FR 22296, April 28, 2003; 68 FR 41081, July 10, 
2003; 69 FR 6150, February 10, 2004; 69 FR 29232, May 21, 2004; and 70 
FR 2950, January 19, 2005. Given the highly volatile nature of the 
substances stored at the HOVENSA facility, the Coast Guard recognizes 
that it could be a potential terrorist target and there is continuing 
risk that subversive activity could be launched by vessels or persons 
in close proximity to the facility. This activity could be directed 
against tank vessels and the waterfront facility. This security zone is 
necessary to decrease the risk that subversive activity could be 
launched against the HOVENSA facility. The Captain of the Port San Juan 
is reducing this risk by prohibiting all vessels from entering within 
approximately 2 miles of the HOVENSA facility unless they have been 
specifically authorized by the Captain of the Port San Juan or have 
submitted a notice of arrival in accordance with the notice of arrival 
requirements of 33 CFR part 160, subpart C.

Discussion of Change From Proposed Rule

    Although no comments were received on the NPRM, the COTP would like 
to receive comments on a proposed change to the regulatory text before 
issuing a final rule. The purpose of this change would be to clarify 
the boundaries of the security zone and reduce potential for 
misinterpretation. The change would affect the listed coordinates in 
paragraph (a) of Sec.  165.766, and not the regulatory restrictions of 
the security zone in paragraph (b) of that section presented in the 
NPRM.
    The pertinent sentence from the regulatory text in both the NPRM 
and this interim rule reads as follows:

    This security zone includes all waters from surface to bottom, 
encompassed by an imaginary line connecting the following points: 
Point 1: 17[deg]41'31'' North, 64[deg]45'09'' West, Point 2: 
17[deg]39'36'' North, 64[deg]44'12'' West, Point 3: 17[deg]40'00'' 
North, 64[deg]43'36'' West, Point 4: 17[deg]41'48'' North, 
64[deg]44'25'' West, and returning to the point of origin.

    The replacement language proposed for the final rule would read as 
follows:

    This security zone includes all waters from surface to bottom, 
encompassed by an imaginary line connecting the following points: 
Point 1: 17[deg]41'31'' North, 64[deg]45'09'' West, Point 2: 
17[deg]39'36'' North, 64[deg]44'12'' West, Point 3: 17[deg]40'00'' 
North, 64[deg]43'36'' West, Point 4: 17[deg]41'48'' North, 
64[deg]44'25'' West, and then tracing the shoreline along the 
water's edge to return to the point of origin.

    The only difference between the two versions is that in the final 
rule, instead of returning from the last coordinate listed to the point 
of origin, the line would follow ``the shoreline along the water's 
edge'' in returning to the point of origin.

Discussion of Rule

    The security zone around the HOVENSA facility is encompassed by a

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line connecting the following coordinates: 17[deg]41'31'' North, 
64[deg]45'09'' West; 17[deg]39'36'' North, 64[deg]44'12'' West; 
17[deg]40'00'' North, 64[deg]43'36'' West; and 17[deg]41'48'' North, 
64[deg]44'25'' West, and back to the point of origin. The security zone 
includes the waters extending approximately 2 miles seaward from the 
HOVENSA facility, Limetree Bay Channel and Limetree Bay. All 
coordinates are based upon North American Datum 1983 (NAD 1983). All 
vessels without a scheduled arrival in accordance with the Notice of 
Arrival requirements of 33 CFR part 160, subpart C are excluded from 
the zone unless specifically authorized by the Captain of the Port San 
Juan.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. The burden imposed on the 
public by this rule is minimal and mariners may seek permission to 
enter the zone from the Coast Guard Captain of the Port San Juan or 
they may enter the zone if they have a scheduled arrival in accordance 
with the Notice of Arrival requirements of 33 CFR, part 160, subpart C.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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.
    The factual basis for this certification is as follows:
     Owners of small charter fishing or diving operations that 
operate near the HOVENSA facility may be affected by the existence of 
this security zone.
     This rule will not have a significant economic impact on 
the above-mentioned entities or a substantial number of small entities 
because this zone covers an area that is not typically used by 
commercial fisherman or divers.

Additionally, vessels may be allowed to enter the zone on a case-by-
case basis with the permission of the Captain of the Port San Juan.

Assistance for Small Entities

    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.

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    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that there are no factors in this case that would limit the use of a 
categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation. A final ``Environmental Analysis Check List'' and a 
final ``Categorical Exclusion Determination'' are available in the 
docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.


0
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: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

0
2. Add Sec.  165.766 to read as follows:


Sec.  165.766  Security Zone: HOVENSA Refinery, St. Croix, U.S. Virgin 
Islands

    (a) Regulated area. The Coast Guard is establishing a security zone 
in and around the HOVENSA Refinery on the south coast of St. Croix, 
U.S. Virgin Islands. This security zone includes all waters from 
surface to bottom, encompassed by an imaginary line connecting the 
following points: Point 1: 17[deg]41'31'' North, 64[deg]45'09'' West, 
Point 2: 17[deg]39'36'' North, 64[deg]44'12'' West, Point 3: 
17[deg]40'00'' North, 64[deg]43'36'' West, Point 4: 17[deg]41'48'' 
North, 64[deg]44'25'' West, and returning to the point of origin. These 
coordinates are based upon North American Datum 1983 (NAD 1983).
    (b) Regulations. (1) Under Sec.  165.33, entry into or remaining in 
the security zone in paragraph (a) of this section is prohibited unless 
authorized by the Coast Guard Captain of the Port San Juan or vessels 
have a scheduled arrival in accordance with the Notice of Arrival 
requirements of 33 CFR part 160, subpart C.
    (2) Persons and vessels desiring to transit the Regulated Area may 
contact the U.S. Coast Guard Captain of the Port, San Juan, at 
telephone number 787-289-2041 or on VHF channel 16 (156.8 MHz) to seek 
permission to transit the area. If permission is granted, all persons 
and vessels must comply with the instructions of the Captain of the 
Port.

    Dated: July 23, 2007.
J.E. Tunstall,
Captain, U.S. Coast Guard, Captain of the Port San Juan.
[FR Doc. E7-15160 Filed 8-3-07; 8:45 am]
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