[Federal Register Volume 84, Number 242 (Tuesday, December 17, 2019)]
[Proposed Rules]
[Pages 68860-68863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27105]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0460]
RIN 1625-AA00


Safety Zone; San Juan Harbor, San Juan, PR

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to revise an existing moving 
safety zone for San Juan Harbor, San Juan, Puerto Rico. The proposed 
revisions would expand the existing moving safety zone to include an 
adjacent berthing; add a 50-yard radius around moored liquefied natural 
gas and liquefied petroleum gas carriers; and update terminal names. 
This action would continue to prohibit persons and vessels from 
entering the safety zone, unless authorized by the Captain of the Port 
San Juan or a designated representative. This action is necessary to 
better meet the safety and security needs of San Juan Harbor. We invite 
your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before January 16, 2020.

ADDRESSES: You may submit comments identified by docket number USCG-
2019-0460 using the Federal eRulemaking 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 Lieutenant Commander Pedro Mendoza, 
Sector San Juan Prevention Department, Waterways Management Division, 
U.S. Coast Guard; telephone 787-729-2374, email 
Pedro.L.Mendoza@uscg.mil.

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

    The existing regulation in 33 CFR 165.754, contains a moving safety 
zone

[[Page 68861]]

around transiting liquefied petroleum gas (LPG) carriers en route to, 
or departing from, the Gulf Refinery Oil dock or the Cata[ntilde]o Oil 
dock. On December 12, 2017, the Coast Guard received a request to 
assess the waterway suitability of transiting and semi-permanently 
moored liquefied natural gas (LNG) carriers within the San Juan Harbor. 
On September 26, 2018, the Coast Guard determined the Port of San Juan 
could accommodate the safe navigation and mooring of LNG carriers 
within the San Juan Harbor. On July 18, 2019, a Notice was published in 
the Federal Register (84 FR 34323) announcing two public meetings would 
be held on July 26, 2019 by the Coast Guard and New Fortress Energy to 
receive comments regarding the safe navigation and mooring of LNG 
carriers through the San Juan Harbor. There were approximately 50 
attendees at the public meeting. We received approximately 20 comments, 
addressing 25 concerns, at the public meetings and through written 
submissions made in response to the Notice announcing the public 
meetings on https://www.regulations.gov under Docket Number USCG-2019-
0460.
    While the Coast Guard completes the rulemaking process for this 
NPRM, we published two temporary final rules (TFR) under the same 
docket number (USCG-2019-0686) and both entitled ``Safety Zone; San 
Juan Harbor, San Juan, PR.'' These TFRs established temporary safety 
zones for navigable waters within an area of one half mile around each 
LNG carrier or LPG carrier (collectively referred to as LG carriers) 
entering and departing San Juan Harbor. The TFRs also established a 50-
yard radius around each vessel when moored at the Puma Energy dock, 
Cata[ntilde]o Oil dock, or Wharf B. The first TFR was published on 
September 13, 2019 (see 84 FR 48278), and was effective from August 23, 
2019 until November 15, 2019. The second TFR was published on October 
31, 2019 (84 FR 59726), and is effective until February 28, 2020.
    Due to their cargoes, size, draft, and the local channel 
restrictions, LNG carriers must use of the center of navigation 
channels for safe transit. The COTP San Juan has determined that 
potential hazards associated with LNG carriers would be a safety 
concern for anyone within an area of one half mile during their transit 
and a 50-yard radius while moored. The purpose of this rulemaking is to 
ensure the safety of vessels and the navigable waters within one half 
mile during the transit of LG carriers through San Juan Harbor and a 
50-yard radius while the LG carriers are moored at Puma Energy dock, 
Cata[ntilde]o Oil dock, or Wharf B. The proposed rule would safeguard 
vessels at an adjacent berthing location, Puerto Nuevo Berth B, which 
supplies LNG to the Puerto Rico Electric Power Authority (PREPA) and 
other industrial sectors.
    These regulations are necessary for the protection of life and 
property on the navigable waters of the United States. The Coast Guard 
is proposing this rulemaking under authority in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The proposed rule would amend the existing moving safety zone in 33 
CFR 165.754 to include LNG carriers, in addition to LPG carriers. We 
are proposing to change the terminal names, ``Gulf Refinery Oil dock or 
Catano Oil dock'' currently referenced in Sec.  165.754 to ``Puma 
Energy Dock, Cata[ntilde]o Oil dock, and Wharf B'' to reflect current 
ownership. The current safety zone is only enforced when LPG carriers 
are transiting the waters of the San Juan Harbor. However, the moving 
safety zone in the proposed rule would remain in effect while LG 
carriers are transiting through the Harbor, and when the carriers are 
moored. A 50-yard radius is proposed to be added around an LG carriers 
when these vessels are moored at the terminals. Vessels may seek 
permission from the COTP to enter, transit through, anchor in, or 
remain within the safety zone. The public would be notified of the 
safety zone by a Marine Broadcast Notice to Mariners, which would be 
issued to the maritime community before the safety zone is activated.
    The proposed safety zone would continue to prohibit persons and 
vessels from entering the safety zone unless authorized by the Captain 
of the Port San Juan or a designated representative. The new LNG 
facility at Wharf B expects to receive one carrier every three days 
with ship-to-ship transfer operations lasting approximately 18 hours in 
duration. We do not anticipate this would significantly affect current 
port operations or navigation. Neighboring facilities would be able to 
safely continue operations when a LG carrier is transiting, moored, or 
engaged in transfer operations. The proposed regulatory text appears at 
the end of this document.
    As noted above, we received approximately 20 comments, addressing 
25 concerns, at the public meetings. A discussion of the comments and 
responses follows.
    Two commenters raised concerns about the source of the LNG. 
Although, this comment is outside of the scope of this proposed 
rulemaking, New Fortress Energy advised the Coast Guard that the gas 
will be sourced from a variety of places including Trinidad and Europe. 
It is unlikely to be sourced from fracking.
    Four commenters asked questions about the specific operations being 
conducted at the new facility. Although, this comment is outside of the 
scope of this proposed rulemaking, New Fortress Energy advised they 
anticipate one LNG carrier to arrive every three days and that each 
ship-to-ship transfer would take around 18 hours. The gas would then be 
loaded to trucks to be delivered to another primary or secondary power 
source.
    Three commenters raised concerns about changes to operations within 
San Juan Harbor. Maritime operations within San Juan Harbor are not 
expected to be hindered by the proposed safety zone, due to its limits 
in size and duration during the transit and mooring of each LNG vessel. 
Neighboring facilities will still be able to conduct operations as 
normal during each LNG transfer.
    Two commenters raised concerns about safety, specifically risk for 
explosion. The Coast Guard has reviewed dispersion rates and explosive 
limits of the facility's operation and has set the safety zone 
accordingly to reduce the risk of such an event. Additionally, New 
Fortress Energy has considered this issue and determined that the 
effects of an explosion, which is considered highly unlikely, would be 
contained within the property lines because there is no landed LNG 
storage at the facility.
    Four commenters raised concerns about not having access to certain 
documents including the Letter of Intent (LOI) and Waterway Suitability 
Assessment (WSA). These documents contain business and security 
sensitive information and would need to be requested through the 
Freedom of Information Act (FOIA). FOIA requests may be submitted in 
writing via mail or overnight carrier to: Commandant (Cg-611), ATTN 
FOIA Officer, US Coast Guard Stop 7710, 2703 Martin Luther King Jr Ave. 
SE, Washington, DC 20593-7710.
    Five commenters asked questions about the Coast Guard's rulemaking 
process. We explained our rulemaking process including the purpose of 
the Federal Register and the types of documents commonly uploaded to 
the docket folder associated with the rulemaking and contained at 
https://www.regulations.gov. This NPRM provides additional opportunity 
for public comment on the proposed safety zone.

[[Page 68862]]

    One commenter raised concern about climate change in Puerto Rico. 
This comment is outside the scope of this rulemaking.
    One commenter asked about the relationship between New Fortress 
Energy and the Coast Guard. The Coast Guard shares the same 
relationship and partnership with all of our stakeholders equally and 
serves as regulators.
    Two commenters asked about the project cost, funding source, and 
consumer savings. This comment is outside the scope of this proposed 
rulemaking; however, this project has received no public funding and 
the cost is in the hundreds of millions.
    One commenter asked if New Fortress Energy is building any other 
facilities in Puerto Rico. This comment is outside the scope of this 
proposed rulemaking; however, New Fortress Energy does not intend to 
build other facilities in Puerto Rico at this time.

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 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), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
available exceptions to the enforcement of the safety zone, and notice 
to mariners. The regulated area will impact small designated areas of 
navigable channels within San Juan Harbor. The rule will allow vessels 
to seek permission to enter, transit through, anchor in, or remain 
within the safety zone. Additionally, notifications to the marine 
community will be made through Local Notice to Mariners, Broadcast 
Notice to Mariners via VHF-FM marine channel 16, and on-scene 
representatives. The notifications will allow the public to plan 
operations around the affected areas.

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 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 that would establish a 50-yard radius around transiting and moored 
liquefied gas carriers. 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. A 
preliminary Record of Environmental Consideration supporting this 
determination will be 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.

[[Page 68863]]

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 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. If your material cannot be 
submitted using https://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 https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and 
submissions in response to this document, see DHS's Correspondence 
System of Records notice (84 FR 48645, September 26, 2018).
    Documents mentioned in this NPRM 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 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:  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.  165.754 to read as follows:


Sec.  165.754  Safety Zone; San Juan Harbor, San Juan, PR.

    (a) Regulated area. A moving safety zone is established in the 
following area:
    (1) The waters around liquefied gas (LG) carriers entering San Juan 
Harbor in an area one half mile around each vessel, beginning one mile 
north of the Bahia de San Juan Lighted Buoy #3, in approximate position 
18[deg]28'17.8'' N, 066[deg]07'36.4'' W and continuing until the vessel 
is moored at the Puma Energy dock, Cata[ntilde]o Oil dock, or Wharf B 
in approximate position 18[deg]25'47'' N, 066[deg]6'32'' W. All 
coordinates are North American Datum 1983.
    (2) The waters around LG carriers in a 50-yard radius around each 
vessel when moored at the Puma Energy dock, Cata[ntilde]o Oil dock, or 
Wharf B.
    (3) The waters around LG carriers departing San Juan Harbor in an 
area one half mile around each vessel beginning at the Puma Energy 
Dock, Cata[ntilde]o Oil dock, or Wharf B in approximate position 
18[deg]25'47'' N, 066[deg]6'32'' W when the vessel gets underway, and 
continuing until the stern passes the Bahia de San Juan Lighted Buoy 
#3, in approximate position 18[deg]28'17.8'' N, 066[deg]07'36.4'' W. 
All coordinates referenced use datum: NAD 83.
    (b) Regulations. (1) No person or vessel may enter, transit or 
remain in the safety zone unless authorized by the Captain of the Port 
(COTP), San Juan, Puerto Rico, or a designated Coast Guard 
commissioned, warrant, or petty officer. Those operating in the safety 
zone with the COTP's authorization must comply with all lawful orders 
or directions given to them by the COTP or his designated 
representative.
    (2) Persons desiring to transit the area of the safety zones may 
contact the COTP San Juan or his designated representative to seek 
permission to transit the area. If permission is granted, all persons 
and vessels must comply with the instructions of the COTP or his 
designated representative.
    (3) Vessels encountering emergencies, which require transit through 
the moving safety zone, should contact the Coast Guard patrol craft or 
Duty Officer on VHF Channel 16. In the event of an emergency, the Coast 
Guard patrol craft may authorize a vessel to transit through the safety 
zone with a Coast Guard designated escort.
    (4) The Captain of the Port and the Duty Officer at Sector San 
Juan, Puerto Rico, can be contacted at telephone number 787-289-2041. 
The Coast Guard Patrol Commander enforcing the safety zone can be 
contacted on VHF-FM channels 16 and 22A.
    (5) Coast Guard Sector San Juan will, when necessary and 
practicable, notify the maritime community of periods during which the 
safety zones will be in effect by providing advance notice of scheduled 
arrivals and departure of liquefied gas carriers via a Marine Broadcast 
Notice to Mariners.
    (6) All persons and vessels must comply with the instructions of 
on-scene patrol personnel. On-scene patrol personnel include 
commissioned, warrant, or petty officers of the U.S. Coast Guard. Coast 
Guard Auxiliary and local or state officials may be present to inform 
vessel operators of the requirements of this section, and other 
applicable laws.

    Dated: November 27, 2019.
G.H. Magee,
Captain, U.S. Coast Guard, Acting Captain of the Port San Juan.
[FR Doc. 2019-27105 Filed 12-16-19; 8:45 am]
 BILLING CODE 9110-04-P


