[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38413-38416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12642]


=======================================================================
-----------------------------------------------------------------------

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, San Juan, Puerto Rico

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposing to establish a safety zone that 
would restrict vessels from transiting through certain navigable waters 
in the San Juan Captain of the Port (COTP) zone during periods of 
experienced or expected gale force winds (of 34 knots/39 mph or 
greater) and reduced visibility due to anticipated heavy weather 
periods, e.g., tropical storm, hurricane or due to any natural or other 
disasters where the restriction of vessel traffic is deemed appropriate 
by the COTP. This proposed rulemaking would prohibit vessel traffic 
transiting or remaining in the regulated areas unless authorized by the 
COTP, San Juan, Puerto Rico, or a designated representative. We invite 
your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 28, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0269 using the Federal Decision Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email 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

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MTS Maritime Transportation System
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code
COTP Captain of the Port

II. Background, Purpose, and Legal Basis

    The purpose of the proposed regulation is to ensure the safety of 
the port and life on navigable waters of the United States by 
restricting 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. This proposed regulation 
would ensure safety of vessels and navigable waters within the safety 
zone before, during, and after heavy weather conditions, e.g., tropical 
storms, hurricanes and any natural or other disasters to minimize 
potential danger to the inbound, outbound, and transiting vessels. 
Additionally, both natural and other disasters may occur that are 
outside of the scope of the previously mentioned events, that would 
require the restriction of vessel movements within the COTP zone to 
protect life, property and the Maritime

[[Page 38414]]

Transportation System (MTS) of Puerto Rico and the U.S. Virgin Islands. 
The Coast Guard is proposing this rulemaking under authority in 46 
U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone on certain 
navigable waters within the Sector San Juan COTP zone in response to 
anticipated heavy weather periods (e.g., tropical storms and 
hurricanes) and any natural or other disasters that would restrict 
movement of vessels when the COTP sets specific Port Conditions, or 
deems such restrictions necessary, if the situation threatens the 
safety of vessels and mariners entering, departing, and transiting 
through ports located within the San Juan COTP zone. The movement of 
vessels and barges over 500 GT within navigable waters of the San Juan 
COTP zone, i.e., ports of Puerto Rico and the U.S. Virgin Islands would 
be affected by this rule. Vessel movement restrictions would only apply 
to ports identified by the COTP forecast to experience gale force winds 
within an established threshold. The proposed rule would give the COTP 
flexibility in controlling and reconstituting vessel traffic during 
periods of heavy weather and allows for expediting resumption of the 
MTS following disasters and severe weather.
    The proposed rule includes safety zones that would have vessel 
movement limitation determined by each Hurricane Port Condition when 
established by the COTP while in hurricane season or while anticipating 
gale force winds, and any natural or other disasters within the San 
Juan COTP zone. Hurricane Port Conditions (WHISKEY, X-RAY, YANKEE, and 
ZULU) are standardized states of operation instituted by the COTP and 
shared with all major ports, facilities, and members of MTS) within the 
COTP zone. All stakeholders are required to work in unison to safeguard 
the MTS when faced with the annual challenges posed by tropical storms, 
hurricanes as well as other unforeseen disasters.
    Notice of Port Conditions and their requirements will be given via 
Marine Safety Information Bulletins, online at https://homeport.uscg.mil/port-directory/san-juan, Broadcast Notice to 
Mariners, and during Port Coordination meetings.
    The regulatory text we are proposing appears at the end of this 
document.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    We expect the economic impact of this proposed rule to be not 
significant for 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 certifies under 5 U.S.C. 605(b) that this 
proposed rule would 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 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.
    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 proposed rule. If the proposed 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. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because it would 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 proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the potential effects of 
this proposed rule elsewhere in this preamble.

[[Page 38415]]

F. Environment

    We have analyzed this proposed 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 made 
a preliminary determination 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 proposed 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. Normally such 
actions are 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 preliminary Record of Environmental 
Consideration is available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this proposed 
rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0269 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov. Frequently Asked 
Questions web page. We review all comments received, but we will only 
post comments that address the topic of the proposed rule. We may 
choose not to post off-topic, inappropriate, or duplicate comments that 
we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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 is 
proposing to amend 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: 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. (1) As used in 
this section, 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.
    (b) Definitions.
    (1) Gale force winds means sustained surface winds, or frequent 
gusts, of 34 knots (39 mph) or more usually seen in coastal regions.
    (2) 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.
    (3) 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.
    (4) 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.
    (5) 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.
    (c) Regulations. (1) Port Condition WHISKEY. Open to all commercial 
traffic. All oceangoing vessels over 500 (GT) to report their intention 
to depart or remain in port. All oceangoing vessels over 500 GT 
intending to remain in port must contact the COTP prior to setting port 
condition X-Ray. 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 must begin removing all debris 
and securing potential flying hazards. Container stacking plans must 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. Open to all commercial traffic. Remain in 
port applications will no longer be accepted without a COTP waiver. 
Vessels remaining in port may be issued COTP Orders to depart 
immediately. All vessels and port facilities 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. Facilities must 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

[[Page 38416]]

vessels must 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 the port. Vessels with COTPs permission to 
remain in the port must implement their pre-approved mooring 
arrangement. Terminal operators must 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. The port is closed to all inbound vessel 
traffic except unless specifically authorized by the COTP. All 
oceangoing vessels greater than 500-gross tons without approved 
applications to remain in port shall depart designated ports within the 
Sector San Juan COTP zone at this time. Final mooring arrangements for 
vessels remaining in port. Appropriate container stacking protocol must 
be completed. Terminal operators must terminate all cargo operations 
not 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 must continue to 
operate in accordance with approved Facility Security Plans and comply 
with the requirements of the Maritime Transportation Security Act.
    (4) Port Condition ZULU. The port is closed to all vessel traffic 
except unless specifically authorized by the COTP. Cargo operations are 
suspended, including bunkering and lightering. except final 
preparations that are expressly permitted by the COTP as necessary to 
ensure the safety of the ports and facilities. Waivers maybe granted 
unless Cargo of Particular Hazard or Certain Dangerous Cargo is 
involved. Coast Guard Port Assessment Teams will conduct final port 
assessments.
    (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) 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) Coast Guard Sector San Juan will attempt to notify the maritime 
community of periods during which these safety zones will be in effect 
via Broadcast Notice to Mariners or by on-scene designated 
representatives.

    Dated: June 8, 2023.
Robert M. Pirone,
Captain, U.S. Coast Guard, Alternate Captain of the Port, San Juan.
[FR Doc. 2023-12642 Filed 6-12-23; 8:45 am]
BILLING CODE 9110-04-P