[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.
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    \1\ 88 FR 38413.
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    While there were no comments, a similar NPRM was published for the 
Key West COTP zone which garnered two public comments.\2\ The Coast 
Guard made changes to the regulatory text in the final rule for the Key 
West COTP zone \3\ for clarity in response to the comments received. In 
this final rule, the Coast Guard made similar changes in the regulatory 
text for consistency with the Key West COTP zone. See 33 CFR 165.707.
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    \2\ 88 FR 27421.
    \3\ See Final rule titled, ``Safety Zone; Atlantic Ocean, Key 
West, FL'' (88 FR 76133).
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III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The purpose of this rule is to protect the general maritime 
public, to include vessel owners, vessel operators, and those in 
management and control positions related to facilities and waterways 
regulated by the Coast Guard, along with those in management and 
control positions related to any land or shore area immediately 
adjacent to those waterways in the San Juan COTP zone, in the event of 
a hurricane, tropical storm, and other natural disasters.

IV. Discussion of Comments, Changes, and the Rule

    As a general matter, this rule is intended to inform the general 
maritime public, to include vessel owners and operators, regulated 
facilities, and waterfront facilities of the Coast Guard's expectations 
in the event of a hurricane, tropical storm, or other disaster, thereby 
expediting the enforcement of the safety zone, and providing more 
advanced notice of the Coast Guard's expectations in the event of a 
hurricane, tropical storm, or other natural disaster. This rule is also 
intended to provide vessel owners and operators, along with the owners 
and operators of regulated facilities and waterfront facilities with a 
deeper understanding of how the Coast Guard intends to handle extreme 
weather-related events so they can plan accordingly.
    As noted in the previous section, we received no comments on our 
NPRM published June 13, 2023. However, due to the thorough review done 
during the similar NPRM published for the Sector Key West COTP zone, we 
have determined that there are several changes in the final rule's 
regulatory text for 33 CFR 165.791 as follows.
    To clarify some potential confusion, the Coast Guard is adding two 
definitions for ``regulated facilities,'' and ``waterfront 
facilities,'' in paragraph(a). The Coast Guard has the authority to 
regulate facilities and land structure or shore area immediately 
adjacent to navigable waters under certain, specific statutory and 
regulatory frameworks. We are adding a definition for ``regulated 
facilities'' to clarify the regulated facilities covered by this rule 
are those regulated under the Ports and Waterways Safety Act,\4\ 
Maritime Transportation and Security Act (MTSA),\5\ Clean Water Act,\6\ 
and the Oil Pollution Act of 1990.\7\ These statutes give the Coast 
Guard the authority and jurisdiction to take certain actions on certain 
regulated facilities that have a maritime nexus. We are adding a 
definition for ``waterfront facilities'' which will include any land 
structure or shore area immediately adjacent to the navigable waters of 
the San Juan COTP zone.
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    \4\ 46 U.S.C. 70001 et seq.
    \5\ 46 U.S.C. 70101 et seq.
    \6\ 33 U.S.C. 1251 et seq.
    \7\ 33 U.S.C. 2701 et seq.
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    When the safety zone is subject to enforcement it will be 
determinate of conditions set forth in paragraphs (c)(1) through 
(c)(5). In paragraphs (c)(1), we are deleting ``port facilities'' and 
adding in its place, ``regulated facilities and waterfront facilities'' 
for consistency as definitions for these terms have been added in 
paragraphs (b)(6) and (b)(7). In the event Port Condition WHISKEY is 
set, all vessels, regulated facilities, and waterfront facilities 
within the San Juan COTP zone would have to comply with the applicable 
regulations in paragraph (c)(1). Additionally, in paragraph (c)(1), we 
removed the sentence, ``Vessels wishing to remain in port are required 
to submit an application to the COTP prior to setting Port Condition X-
Ray.'' In its place, we are adding the sentence, ``Oceangoing vessels 
greater than 500 gross tons (GT) intending to remain in the port during 
Port Condition Whiskey must contact the San Juan COTP prior to the 
setting of port condition X-Ray.'' We are taking this action to prevent 
vessel owners and operators from having to generate additional 
documentation.
    In paragraphs (c)(2), we are deleting ``port facilities'' and 
adding in its place, ``regulated facilities and waterfront facilities'' 
for consistency as definitions for these terms have been added in 
paragraphs (a)(7) and (a)(8). In the event Port Condition X-RAY is set, 
all vessels, regulated facilities, and waterfront facilities within the 
San Juan COTP zone would have to comply with the applicable regulations 
in paragraph (c)(2). Additionally, in paragraph (c)(2), we are deleting 
the sentence, ``The COTP may require additional precautions to ensure 
the safety of the ports and waterways'' because it is

[[Page 23913]]

overly vague and may cause undue confusion for owners and operators of 
vessels and regulated facilities.
    In paragraph (c)(3), we clarified we are only limiting cargo 
operations at ``regulated facilities.'' We also removed some the 
language that went into specifics of cargo operations. Removing the 
language made the regulatory text more succinct, as the initial 
language contained unnecessary redundancies. We also clarified that 
only facilities regulated under the MTSA will be required to operate in 
accordance with their security plan.
    In paragraph (c)(4), we are removing the words ``are suspended'' 
and replacing it with, ``must cease all cargo operations'' because the 
phrase ``are suspended'' may be confusing in this context. By using the 
phrase ``must cease all cargo operations'' we are making it clear to 
the regulated parties that cargo operations must stop when Port ZULU is 
set.
    In paragraph (c)(7), we are revising the text to clarify that the 
Coast Guard Sector San Juan will notify the maritime community, ``to 
the furthest extent practicable'' of the periods which the safety zone 
in paragraph (a) will be subject to enforcement via Broadcast Notice to 
Mariners or by on-scene designated representatives.
    Lastly, we are making non-substantive editorial changes and 
revising terminology for consistency throughout the final rule 
regulatory text.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on the following 
reasons: (1) Vessel traffic and facilities will be impacted by this 
rule only during limited times while heavy weather or other disaster is 
expected to impact the Sector San Juan COTP zone; (2) vessel traffic 
would be secured only during port conditions Yankee and Zulu, and only 
in port areas potentially affected by gale force winds; and (3) the 
Coast Guard would issue updates on 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]
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