[Federal Register Volume 84, Number 192 (Thursday, October 3, 2019)]
[Proposed Rules]
[Pages 52835-52838]
[FR Doc No: 2019-21510]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 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: Supplemental notice of proposed rulemaking.

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

SUMMARY: On June 5, 2017, the Coast Guard published a notice of
proposed rulemaking (NPRM) to establish a

temporary safety zone over certain navigable waters within the Sector
Miami Captain of the Port (COTP) zone. This safety zone would allow the
Coast Guard to 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. The Coast Guard proposes
to publish this supplemental notice of proposed rulemaking (SNPRM)
since considerable time has passed from the time when the initial NPRM
was published, and because minor modifications have been made to the
proposed rule. This SNPRM requests comments on the revised proposal.

DATES: Comments and related material must be received by the Coast
Guard on or before November 4, 2019.

ADDRESSES: You may submit comments identified by docket number USCG-
2016-1067 using the Federal eRulemaking Portal at http://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 contact Mr. Omar Beceiro, Sector Miami Waterways
Management Division, U.S. Coast Guard at<PHONE_NUMBER>, or by email at
<EMAIL_ADDRESS>
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, Purpose, and Legal Basis

A. Regulatory History and Information

    The purpose of the proposed regulation is to ensure the safety of
life on navigable waters of the United States by restricting movement
of certain vessels in the event of severe weather conditions or
disasters, including tropical storms and hurricanes. The COTP has
determined reduced or restricted visibility and tropical storm force
winds, which may occur during tropical storms, hurricanes and other
disasters, constitute a safety concern for anyone within the proposed
safety zone.

B. Discussion of Comments on NPRM and Changes to the Proposed Rule

    On May 10, 2017, the Coast Guard published a NPRM titled ``Safety
Zone; Hurricanes and Other Disasters in South Florida'' (see 82 FR
21742). The purpose of the proposed regulation was to ensure the safety
of life on navigable waters of the United States within the Sector
Miami COTP zone by restricting movement of certain vessels in the event
of severe weather conditions or disasters, including tropical storms
and hurricanes. During the comment period, the Coast Guard received two
comments, both in favor of the proposed regulations. One comment;
however, also expressed several concerns. The commenter expressed a
concern that the proposed rule did not clearly indicate that the COTP
has the discretion to implement only those measures necessary given the
specific circumstances of the emergency, rather than all measures being
required. In addition, the commenter indicated the proposed rule should
clearly state the application of restrictive measures would be applied
only to those areas within the Sector Miami COTP zone affected by the
hazardous condition. The commenter indicated that the proposed rule
should not restrict operations in other areas of the COTP zones which
are minimally or not at all affected. Finally, the commenter suggested
that language in the section heading and text be modified to clearly
indicate the regulation would be applicable when tropical storm-force
winds are expected. To address these concerns, the Coast Guard made
changes to the title and text of the proposed rule to include the use
of ``tropical storm'' when referencing severe weather and clarified the
COTP may restrict vessel movement only in ports affected by impending
tropical storm force winds.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a temporary safety zone on
certain navigable waters within the Sector Miami COTP zone in response
to disasters and/or specified severe weather conditions (e.g. tropical
storms and hurricanes) that would restrict movement of certain vessels
when the COTP sets specific Port Conditions. The movement of certain
vessel traffic within navigable waters of the Miami River and Ports of
Miami, Everglades, Palm Beach and Fort Pierce would be affected by this
rule. Vessel movement restrictions would only apply to those ports
within the Sector Miami COTP zone forecast to experience tropical storm
force winds within a specific timeframe. The proposed rule would give
the COTP flexibility in controlling and reconstituting vessel traffic
during periods of heavy weather and expedite resumption of the Marine
Transportation System following disasters and severe weather.
    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 the Marine Transportation System. The
intermodal and dynamic nature of the Marine Transportation System
requires all parties to comply with safety and security procedures when
faced with the challenges of tropical storms, hurricanes and other
disasters.
    Notice of Port Conditions and their requirements will be given via
Marine Safety Information Bulletins, online at http://
http://homeport.uscg.mil/miami">homeport.uscg.mil/miami, Broadcast Notice to Mariners, and Severe
Weather Advisory Team meetings.
    The revised 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. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This SNPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the SNPRM 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. Port facilities
and vessel traffic will be affected by this rule only during limited
times when heavy weather is expected 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 would issue
updates on http://homeport.uscg.mil/miami">homeport.uscg.mil/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 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 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 rule would affect
your small business, organization, or governmental jurisdiction and you
have questions concerning its provisions or options for compliance,
please contact 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 contact 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 effects of this rule
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland
Security Management 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 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 tropical
storms, hurricanes or other heavy weather events. 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 contact 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 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.
    We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
    We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this SNPRM as being available in the docket,
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.

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 proposes
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: 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. Revise Sec.  165.785 to read as follows:

Sec.  165.785   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
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: September 23, 2019.
J.F. Burdian,
Captain, U.S. Coast Guard, Captain of the Port, Miami.
[FR Doc. 2019-21510 Filed 10-2-19; 8:45 am]
 BILLING CODE 9110-04-P