[Federal Register: July 7, 2005 (Volume 70, Number 129)]
[Rules and Regulations]
[Page 39176-39178]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy05-3]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP Corpus Christi-04-006]
RIN 1625-AA87
Security Zones; Port of Port Lavaca-Point Comfort, Point Comfort,
TX and Port of Corpus Christi Inner Harbor, Corpus Christi, TX
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is removing an established security zone in
the Port of Port Lavaca-Point Comfort. Under the Maritime
Transportation Security Act of 2002, owners or operators of local
facilities are required to take specific action to improve facility
security. As such, a security zone around local facilities will no
longer be necessary under normal conditions. This final rule removes an
established security zone.
DATES: This rule is effective on August 8, 2005.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket [COTP Corpus Christi 04-006], and are available for
inspection or copying at Sector Corpus Christi Prevention Department,
555 N. Carancahua, Suite 500, Corpus Christi, TX 78478, between 7:30
a.m. 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ensign John Oscar, Marine Safety
Office Corpus Christi, at (361) 888-3162, ext. 534.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On February 25, 2005, the Coast Guard published a Notice of
Proposed Rule Making and request for comments entitled ``Security
Zones; Port of Port Lavaca-Point Comfort, TX and Port of Corpus Christi
Inner Harbor, Corpus Christi, TX'' in the Federal Register (70 FR
9263). As of March 28, 2005, we have received five written comments on
that Notice of Proposed Rulemaking. No public meeting was requested so
one was not held.
As indicated in our ``Discussion of Comments and Changes'' section
below, we have considered these comments in this final rule.
Discussion of Comments and Changes
As of March 28, 2005, we received five written comments on the
NPRM. These comments focused generally on one concern, which is the
increase in maritime security risk due to commercial and recreational
boating. Each section of this concern is discussed in more detail in
the following paragraphs.
Increased Maritime Security Risk. All five comments express concern
regarding the increase in maritime security risk that would accompany
the removal of the Port of Port Lavaca-Point Comfort Security Zone.
Each comment states that the Port of Port Lavaca-Point Comfort has
several shipping receiving and storage terminals for a variety of
liquid chemicals, and it also has many foreign flagged vessels arriving
and departing the port every day. Further, the comments state that the
prohibition of commercial and recreational vessels in the established
security zone has provided a much-needed additional tier of security
protection for these terminals, as well as the vessel and cargo users.
These comments state that the removal of the established security zone
would create an increased maritime security risk for the port and its
users.
To address these comments, the Coast Guard's position regarding the
following issues of waterfront facility security, foreign flagged
vessel security, and commercial and recreational vessel security in the
Port of Port Lavaca-Point Comfort will be explained separately.
Facility Security. Under the authority of the Maritime Transportation
Security Act (MTSA) of 2002, the Coast Guard published a final rule on
October 22, 2003, entitled ``Facility Security'' in the Federal
Register (68 FR 60515) that established 33 CFR part 105. That final
rule became effective November 21, 2003, and provides security measures
for certain facilities, including those facilities that exist on
waterways in the Port of Port Lavaca-Point Comfort area. Section
105.200 of 33 CFR requires owners or operators of these facilities to
designate security officers for facilities, develop security plans
based on security assessments and surveys, implement security measures
specific to the facility's operations, and comply with Maritime
Security Levels. Under 33 CFR 105.115, the owners or operators of these
facilities must have submitted to the Captain of the Port, by December
31, 2003, a Facility Security Plan as described in Subpart D of 33 CFR
105, or if intending to operate under an approved Alternative Security
Program as described in 33 CFR 101.130, a letter signed by the facility
owner or operator stating which approved Alternative Security Program
the owner or operator intends to use. Section 105.115 of 33 CFR part
105 also requires facility owners or operators to be in compliance with
33 CFR part 105 on or before July 1, 2004.
Only a small number of waterfront facilities exist within the area
protected by the security zone. Each of these facilities submitted a
comprehensive facility security plan (FSP), which has been thoroughly
reviewed and approved by the Coast Guard. Additionally, each facility
was examined for compliance with their FSP within the last twelve
months. All facilities were found to be in full compliance with their
FSP. Additionally, facilities subject to the MTSA must have the
capability to continuously monitor, among other things, the facility
and its approaches on land and water, and vessels at the facility and
areas surrounding the vessels.
Vessel Security. Each foreign flagged vessel greater than 300 gross
tons that intends to enter the Port of Port Lavaca-Point Comfort must
submit a notice of arrival to the Coast Guard through the National
Vessel Movement Center in accordance with 33 CFR part 160. As part of
this notification process, detailed information regarding the times of
arrival and departure, on board cargo, crew, last five ports visited
and other pertinent information must be supplied in advance of the
vessel's arrival. MSO Corpus Christi processes this arrival
information, and using standard Coast Guard criteria, determines if a
vessel merits special consideration before being allowed entry into the
United States. Such vessels are characterized as high interest vessels
(HIV). Those HIVs are boarded offshore to verify the integrity of the
vessel's security in order to ensure the protection of both the vessel
and the port. In all cases, no vessel is allowed entry into any port
unless all security concerns have been adequately addressed.
The Coast Guard calculated that for the past 5 years the average
number of vessels arriving each year was 330. Between April 1, 2004,
and March 31, 2005, a total of 364 vessel arrivals occurred. Of that,
only 20 vessels, or 5.5
[[Page 39177]]
percent, were designated as a HIV. In accordance with current policy,
the Coast Guard has boarded all HIVs that entered the Port of Port
Lavaca-Point Comfort.
In order to address ship specific security, all foreign flagged
vessels exceeding 500 gross tons are subject to International Ship and
Port Facility Security (ISPS) Code and must posses an International
Ship Security Certificate (ISSC). A vessel that possesses a valid ISSC
has been found to have an acceptable level of security as determined by
the issuing authority. For every vessel that indicates it holds a valid
ISSC, an initial verification exam is conducted by the Coast Guard
before allowing the vessel into the United States. Furthermore, the
Coast Guard verifies ISPS compliance through regular port state control
examinations, which are conducted on foreign flagged vessels while in
port. Vessels found not in compliance are either expelled from port or
detained until satisfactory corrections have been made.
Commercial and Recreational Vessel Security. Aside from commercial
deep draft shipping, commercial towing vessels, and barges that have
legitimate business at the facilities in the existing security zone,
the only commercial vessels of concern would be fishing vessels.
However, in April of 1988, the Texas Department of Health (TDH) issued
a ``closure order'' for an area that includes the existing security
zone that prohibits the taking of finfish and crabs for consumption.
This order is still effective. As such, commercial and recreational
fishing vessels should not be present in the area of the facilities
even after the security zone is removed.
In order to maintain the security of the port of Port Lavaca-Point
Comfort, and to verify the intentions of vessels in the port area, the
Coast Guard conducts regular, highly visible waterborne patrols using
both Coast Guard and Coast Guard Auxiliary vessels, random shore side
patrols to ensure facility security is executed properly, and over-
flights using Coast Guard aircraft. State and local authorities
including Texas Parks and Wildlife, Jackson County Sheriff's Office,
and the Texas General Land Office conduct other patrols. These agencies
maintain close contact with the Coast Guard while on patrol.
Summary of response to comments. The Coast Guard contends that
security measures implemented at facilities and on vessels as required
by the MTSA and ISPS Code, the Coast Guard's efforts to screen and
board arriving foreign flagged vessels, and efforts to conduct highly
visible patrols of the Port Lavaca-Point Comfort area, provide a
substantial layered defense mechanism against security threats. The
Coast Guard finds that removing the established security zone in the
Port Lavaca-Point Comfort area will not result in an unacceptable
increase in the level of maritime security risk. No changes from the
proposed rule have been made except for grammatical changes in
paragraphs (a), (b)(1), and (b)(2), of 33 CFR 165.809 to change
references from security zones to security zone.
Background and Purpose
On October 17, 2002, the Coast Guard published a final rule
entitled ``Security Zones; Port of Port Lavaca-Point Comfort, Point
Comfort, TX and Port of Corpus Christi Inner Harbor, Corpus Christi,
TX'', in the Federal Register (67 FR 64046). That final rule
established two security zones that appear in 33 CFR 165.809. The first
security zone is entitled ``Port of Port Lavaca-Point Comfort'' and
included all waters between the Dredge Island Bridge at 28[deg]39'30''
N, 96[deg]34'20'' W and a line drawn between points 28[deg]38'10'' N,
96[deg]33'15'' W and 28[deg]38'10'' N, 96[deg]34'45'' W, including the
Point Comfort turning basin and adjacent Alcoa Channel. The second
security zone is entitled ``Port of Corpus Christi Inner Harbor'' and
included all waters of the Corpus Christi Inner Harbor from the Inner
Harbor Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin.
As a result of the Maritime Transportation Security Act, the
International Ship and Port Facility Security Code, and current
security actions performed by the Coast Guard, state and local
authorities, the Coast Guard finds that the existing security zone for
the Port of Port Lavaca-Point Comfort is no longer necessary under
normal conditions.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security.
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary as this rule removes a portion of a regulation
that is no longer necessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process. 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.
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
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
[[Page 39178]]
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 or more in any one year.
Though rule would not result in such expenditure, we do discuss the
effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This
proposed rule is not an economically significant rule and will not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This 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.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that Order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph 34(g), of the Instruction, from further
environmental documentation because this rule is not expected to result
in any significant adverse environmental impact as described in NEPA.
Under figure 2-1, paragraph (34)(g), of the Instruction, an
``Environmental Analysis Check List'' and a ``Categorical Exclusion
Determination'' are not required for this rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.
0
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: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. In Sec. 165.809, revise paragraphs (a), (b)(1), and (b)(2) to read
as follows:
Sec. 165.809 Security Zone; Port of Corpus Christi Inner Harbor,
Corpus Christi, TX.
(a) Location. The following area is designated as a security zone:
all waters of the Corpus Christi Inner Harbor from the Inner Harbor
Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin.
(b) Regulations. (1) No recreational vessels, passenger vessels, or
commercial fishing vessels may enter the security zone unless
specifically authorized by the Captain of the Port Corpus Christi or a
designated representative.
(2) Recreational vessels, passenger vessels and commercial fishing
vessels requiring entry into the security zone must contact the Captain
of the Port Corpus Christi or a designated representative. The Captain
of the Port may be contacted via VHF Channel 16 or via telephone at
(361) 888-3162 to seek permission to transit the area. If permission is
granted, all persons and vessels must comply with the instructions of
the Captain of the Port, Corpus Christi or a designated representative.
* * * * *
Dated: June 9, 2005.
J. H. Korn,
Captain, U.S. Coast Guard, Captain of the Port Corpus Christi.
[FR Doc. 05-13384 Filed 7-6-05; 8:45 am]
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