[Federal Register Volume 85, Number 46 (Monday, March 9, 2020)]
[Rules and Regulations]
[Pages 13520-13523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04709]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR 165

[Docket Number USCG-2016-1067]
RIN 1625-AA00


Safety Zone; Hurricanes, Tropical Storms and Other Disasters in 
South Florida

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard will establish a safety zone that would 
restrict certain vessels from entering or transiting through certain 
navigable waters in the Miami River and Ports of Miami, Everglades, 
Palm Beach and Fort Pierce during periods of reduced or restricted 
visibility due to tropical storm force winds (39-73 mph/34-63 knots), 
hurricanes and/or other disasters. This action is necessary for the 
safety of life

[[Page 13521]]

on these navigable waters within the Sector Miami Captain of the Port 
(COTP) zone.

DATES: This rule is effective April 8, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2016-1067 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
rulemaking contact Mr. Omar Beceiro, Sector Miami Waterways Management 
Division, U.S. Coast Guard at (305) 535-4317, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The COTP has determined reduced or restricted visibility and 
tropical storm force winds, which may occur during tropical storms, 
hurricanes and other disasters, constitutes a safety concern for 
vessels within the Miami COTP zone. As a result, the Coast Guard 
published a notice of proposed rulemaking (NPRM) on June 5, 2017 \1\ to 
establish a temporary safety zone over certain navigable waters in the 
Miami River and Ports of Miami, Everglades, Palm Beach and Fort Pierce. 
Since a considerable amount of time passed and a final rule was not 
published, the Coast Guard published a supplemental notice of proposed 
rulemaking (SNPRM) on October 3, 2019. \2\ During the comment period 
that ended November 4, 2019, the Coast Guard received two comments.
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    \1\ See 82 FR 21742.
    \2\ See 84 FR 52835.
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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 (previously 33 U.S.C. 1231). The COTP Miami has determined 
reduced or restricted visibility and tropical storm force winds, which 
may occur during tropical storms, hurricanes and other disasters, 
constitutes a safety concern. The purpose of this rule is to ensure 
safety of certain vessels and navigable waters in the safety zone 
before, during, and after tropical storms, hurricanes and other 
disasters.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, the Coast Guard received two comments on the SNPRM 
in support of the proposed rule. In the regulatory text of this rule, 
we made one change by changing the section number of regulation from 
Sec.  165.785 to Sec.  165.706. We are making this change because Sec.  
165.785 is already being used for another regulation.
    This rule establishes a safety zone that restricts certain vessels 
from entering or transiting through certain navigable waters in the 
Miami River and Ports of Miami, Everglades, Palm Beach and Fort Pierce 
during periods of reduced or restricted visibility due to tropical 
storm force winds (39-73 mph/34-63 knots), hurricanes and/or other 
disasters. The duration of the regulation is intended to ensure the 
safety of vessels and these navigable waters before, during, and after 
periods of tropical storm force winds.

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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. Certain vessels 
will be affected by this rule only when heavy weather is forecast to 
make imminent landfall within the Sector Miami COTP zone. In addition, 
vessel traffic would be secured only during port conditions Yankee and 
Zulu, and only in ports potentially affected by tropical storm force 
winds. The Coast Guard will issue updates on https://homeport.uscg.mil/port-directory/miami, via broadcasts on VHF-FM marine channel 16, and 
during Severe Weather Advisory Team 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 did not receive any 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).

[[Page 13522]]

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. If 
you believe this rule has implications for federalism or Indian tribes, 
please call or email the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

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 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 in 
the Miami COTP zone implemented during tropical storms, hurricanes or 
other heavy weather events. This action is categorically excluded from 
further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard 
Environmental Planning Implementing Procedures 5090.1. A Record of 
Environmental Consideration supporting this determination is available 
in the docket where indicated under ADDRESSES.

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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.706 to read as follows:


Sec.  165.706   Safety Zone; Hurricanes, Tropical Storms and Other 
Disasters in South Florida.

    (a) Regulated Areas. All navigable waters, as defined in 33 CFR 
2.36, within Sector Miami COTP zone, Miami, Florida, as described in 33 
CFR 3.35-10, during specified conditions.
    (b) Definitions. (1) The term ``designated representative'' means 
Coast Guard Patrol Commanders, including Coast Guard coxswains, petty 
officers, and other officers operating Coast Guard vessels, and 
Federal, state, and local officers designated by or assisting the COTP 
Miami, in the enforcement of the regulated areas.
    (2) Port Condition WHISKEY means a condition set by the COTP when 
weather advisories indicate sustained tropical storm force winds from a 
tropical or hurricane force storm are predicted to make landfall at the 
port within 72 hours.
    (3) Port Condition X-RAY means a condition set by the COTP when 
weather advisories indicate sustained tropical storm force winds from a 
tropical or hurricane force storm are predicted to make landfall at the 
port within 48 hours.
    (4) Port Condition YANKEE means a condition set by the COTP when 
weather advisories indicate that sustained tropical storm force winds 
from a tropical or hurricane force storm are predicted to make landfall 
at the port within 24 hours.
    (5) Port Condition ZULU means a condition set by the COTP when 
weather advisories indicate that sustained tropical storm force winds 
from a tropical or hurricane force storm are predicted to make landfall 
at the port within 12 hours.
    (c) Regulations--(1) Port Condition WHISKEY. All vessel and port 
facilities must exercise due diligence in preparation for potential 
storm impacts. Slow-moving vessels may be ordered to depart to ensure 
safe avoidance of the incoming storm upon the anticipation of the 
setting of Port Condition X-RAY. Ports and waterfront facilities shall 
begin removing all debris and securing potential flying hazards. 
Container stacking plans shall be implemented. Waterfront facilities 
that are unable to reduce container-stacking height to no more than 
four high must submit a container stacking protocol to the COTP.
    (2) Port Condition X-RAY. All vessels and port facilities shall 
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. Facilities shall continue to implement 
container-stacking protocol. Containers must not exceed four tiers, 
unless previously approved by the COTP. Containers carrying hazardous 
materials may not be stacked above the second tier. All oceangoing 
commercial vessels greater than 500-gross tons must prepare to depart 
ports and anchorages within the affected regulated area. These vessels 
shall depart immediately upon the setting of Port Condition YANKEE. 
During this condition, slow-moving vessels may be ordered to depart to 
ensure safe avoidance of the incoming storm. Vessels that are unable to 
depart the port must contact the COTP to request and receive permission 
to remain in port. Vessels with COTP's permission to remain in port 
must implement their pre-approved mooring arrangement. Terminal 
operators shall prepare to terminate all cargo operations. The COTP may 
require additional precautions to ensure the safety of the ports and 
waterways.
    (3) Port Condition YANKEE. Affected ports would be closed to 
inbound vessel traffic. All oceangoing commercial vessels greater than 
500-gross tons must have departed designated ports within the Sector 
Miami COTP zone. Appropriate container stacking protocol must be 
completed. Terminal operators must terminate all cargo operations not

[[Page 13523]]

associated with storm preparations. Cargo operations associated with 
storm preparations include moving cargo within or off the port for 
securing purposes, crane and other port/facility equipment 
preparations, and similar activities, but do not include moving cargo 
onto the port or vessel loading/discharging operations unless 
specifically authorized by the COTP. All facilities shall continue to 
operate in accordance with approved Facility Security Plans and comply 
with the requirements of the Maritime Transportation Security Act 
(MTSA).
    (4) Port Condition ZULU. All port waterfront operations are 
suspended, except final preparations that are expressly permitted by 
the COTP as necessary to ensure the safety of the ports and facilities. 
Coast Guard Port Assessment Teams will conduct final port assessments.
    (5) Emergency Restrictions for Other Disasters. Any natural or 
other disasters that are anticipated to affect the Sector Miami COTP 
zone will result in the prohibition of facility operations and 
commercial vessel traffic transiting or remaining in the affected port.

    Dated: January 14, 2020.
J.F. Burdian,
Captain, U.S. Coast Guard, Captain of the Port, Miami.
[FR Doc. 2020-04709 Filed 3-6-20; 8:45 am]
 BILLING CODE 9110-04-P