[Federal Register Volume 73, Number 220 (Thursday, November 13, 2008)]
[Rules and Regulations]
[Pages 67104-67107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26900]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2008-1013]
RIN 1625-AA87
Security Zones; Escorted Vessels, Mobile, AL, Captain of the Port
Zone
AGENCY: Coast Guard, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Coast Guard is establishing a 500-yard moving security
zone around any vessel being escorted by one or more Coast Guard or
other Federal, State, or local law enforcement assets on the navigable
waters of the Captain of the Port Zone, Mobile, Alabama. This action is
necessary to ensure the safe transit and mooring of escorted vessels as
well as the safety and security of personnel and port facilities. No
vessel or person is allowed inside the security zone unless authorized
by the Captain of the Port or a designated representative. The Coast
Guard seeks comments on this interim rule.
DATES: This rule is effective November 13, 2008. Comments and related
material must reach the Docket Management Facility on or before
December 15, 2008.
ADDRESSES: You may submit comments identified by docket number USCG-
2008-1013 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Hand Delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these methods. For
instructions on submitting comments, see the ``Public Participation and
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section
below.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call LT Jonathan Mangum 251-441-5940. If you have questions on
viewing or submitting material to the docket, call Renee V. Wright,
Program Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-1013), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2008-1013'' in the Docket ID box, press Enter,
and then click on the balloon shape in the Actions column. If you
submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and we may change this rule
based on your comments.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert USCG-2008-1013 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. You may also visit
either the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays; or Coast Guard Sector
Mobile (Waterways Management) between 9 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.
Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the Docket Management Facility at the address under
ADDRESSES
[[Page 67105]]
explaining why one would be beneficial. If we determine that one would
aid this rulemaking, we will hold one at a time and place announced by
a later notice in the Federal Register.
Regulatory Information
The Coast Guard is issuing this interim rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
for this regulation. Publishing a NPRM and delaying the effective date
would be contrary to public interest since the security zones around
escorted vessels are necessary to ensure the safe transit and mooring
of the escorted vessels as well as the public. Certain vessel movements
are more vulnerable to terrorist acts and it would be contrary to the
public interest to publish an NPRM that would delay the effective date
of this rule. Specifically, many of the escorted vessels in the Mobile
COTP zone carry hazardous, sensitive, or volatile cargoes or are
otherwise critical for national security. Any incident involving these
escorted vessels could affect the health and safety of the public and
shut down critical channels and ports that support vital maritime
trade. It is imperative that these vessels be escorted by law
enforcement assets to ensure that other vessels remain clear to
mitigate navigation hazards and obstructions. Keeping vessels clear of
the escorted vessels also reduces congestion and helps law enforcement
readily identify and classify impending threats.
These hazardous, sensitive, or volatile cargoes are increasing in
frequency within the navigable waters of the Captain of the Port Zone,
Mobile, Alabama as maritime trade and commerce along the Gulf Coast
grows. Vessels carrying these cargoes continue to arrive with only 24-
36 hours advance notice. The Coast Guard and other law enforcement
assets are constantly called upon to quickly mobilize to ensure that
these vessels are adequately protected.
Additionally, the Coast Guard coordinates escorts for vessels in
the Captain of the Port Zone Mobile, Alabama for port safety and
security. Recently, recreational boaters and other small craft have
endangered themselves and others by not following the verbal guidance
of on-scene law enforcement officials and approaching too close to the
escorted vessels.
Therefore, to ensure national security, safe boating, and to
facilitate efficient maritime trade, it is imperative to create an
effective security zone for all escorted vessels as soon as possible.
For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for making this rule effective less
than 30 days after publication in the Federal Register.
Background and Purpose
The terrorist attacks of September 11, 2001, heightened the need
for development of various security measures throughout the seaports of
the United States, particularly around vessels and facilities whose
presence or movement creates a heightened vulnerability to terrorist
acts; or those for which the consequences of terrorist acts represent a
threat to national security. The President of the United States has
found that the security of the United States is and continues to be
endangered following the attacks of September 11 (E.O. 13273, 67 FR
56215, Sep. 3, 2002 and 73 FR 54489, Sep. 18, 2008). Additionally,
national security and intelligence officials continue to warn that
future terrorist attacks are likely. The ports within the Captain of
the Port (COTP) Mobile frequently receive vessels that require
additional security, including, but not limited to, vessels carrying
sensitive Department of Defense cargoes, vessels carrying dangerous
cargoes, and foreign naval vessels. The COTP has determined that these
vessels have a significant vulnerability to subversive activity by
other vessels or persons, or, in some cases, themselves pose a risk to
a port and the public within the COTP Zone, as described in 33 CFR
3.40-10. This rule enables the COTP Mobile to provide effective port
security, while minimizing the public's confusion and easing the
administrative burden of implementing separate temporary security zone
rules for each escorted vessel.
Discussion of Proposed Rule
This rule establishes a security zone that prohibits persons and
vessels from coming within 500 yards of all escorted vessels within the
navigable waters of the COTP Mobile zone unless authorized by the Coast
Guard COTP or a COTP designated representative. Persons or vessels that
receive permission to enter the security zone must proceed at a minimum
safe speed possible for safe navigation and must comply with all orders
issued by the COTP or a designated representative.
An escorted vessel is a vessel, other than a large U.S. naval
vessel as defined in 33 CFR 165.2015, that is accompanied by one or
more Coast Guard assets or other Federal, State or local law
enforcement agency assets, clearly identifiable by flashing lights,
vessel markings, or with agency insignia as listed below: Coast Guard
surface or air asset displaying the Coast Guard insignia; Federal,
State and/or local law enforcement asset displaying the applicable
agency markings and/or equipment associated with the agency. An
escorted vessel also includes a moored or anchored vessel that has been
accompanied by one or more of these law enforcement assets to its
present location that is identifiable by day boards or other visual
indications such as lights or buoys when law enforcement assets are no
longer on-scene.
In addition to the presence of these law enforcement assets for
escorted vessels, and day boards or other visual indications such as
lights or buoys for moored or anchored escorted vessels if no law
enforcement assets are on-scene, a broadcast notice to mariners will
advise the public that a 500-yard security zone is in effect around the
escorted vessel. All local broadcasts to mariners concerning escorted
vessels will normally be issued at approximately 30-minute intervals
while the security zone restrictions remain in effect.
Regulatory Analyses
We developed this interim rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.
Regulatory Planning and Review
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.
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation is unnecessary. The limited geographic area
impacted by the security zone will not restrict the movement or routine
operation of commercial or recreational vessels through the ports
within the Captain of the Port Zone Mobile. Vessels requiring transit
through the security zone also
[[Page 67106]]
may be permitted to do so with approval by COTP Mobile or a designated
representative.
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 rule will
not have a significant economic impact on a substantial number of small
entities. This rule may affect the following entities, some of which
may be small entities: the owners or operators of vessels intending to
transit in the vicinity of escorted vessels on the navigable waters of
the Captain of the Port Zone, Mobile, Alabama. This rule would not have
a significant impact on a substantial number of small entities because
the zones are limited in size, encompassing the escorted vessel and a
500-yard radius around the vessel only. In most cases, the security
zones will leave ample space for vessels to navigate around them. If
not, and security conditions permit, the COTP will attempt to provide
flexibility for individual vessels to transit through the zones as
needed. Therefore, the zones will not significantly impact commercial
and passenger vessel traffic patterns. Additionally, mariners will be
given advanced notice of all security zones created under this rule via
broadcast notice to mariners.
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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer 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 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 this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect 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 rule
is not an economically significant rule and will not create an
environmental risk to health or risk to safety that may
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 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. We invite your
comments on how this rule might impact tribal governments, even if that
impact may not constitute a ``tribal implication'' under the Order.
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 Department of Homeland Security
Management Directive 5100.1 and Commandant Instruction M16475.lD, which
guide the Coast Guard in
[[Page 67107]]
complying with the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321-4370f), and have concluded under the Instruction 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. An environmental
analysis checklist and a categorical exclusion supporting this
determination are available in the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping 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. 701; 50 U.S.C. 191,
195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116
Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
0
2. Add Sec. 165.836 to read as follows:
Sec. 165.836 Security Zone; Escorted Vessels, Mobile, Alabama,
Captain of the Port.
(a) Definitions. The following definitions apply to this section:
COTP means Captain of the Port Mobile, AL.
Designated representatives 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, in the enforcement of the security
zone.
Escorted vessel means a vessel, other than a large U.S. naval
vessel as defined in 33 CFR 165.2015, that is accompanied by one or
more Coast Guard assets or other Federal, State or local law
enforcement agency assets clearly identifiable by flashing lights,
vessel markings, or with agency insignia as follows: Coast Guard
surface or air asset displaying the Coast Guard insignia. State and/or
local law enforcement asset displaying the applicable agency markings
and/or equipment associated with the agency. Escorted vessel also means
a moored or anchored vessel that was escorted by Coast Guard assets or
other Federal, State or local law enforcement agency assets to its
present location and is identifiable by the use of day boards or other
visual indications such as lights or buoys when law enforcement assets
are no longer on-scene.
Minimum safe speed for navigation means the speed at which a vessel
proceeds when it is fully off plane, completely settled in the water
and not creating excessive wake or surge. Due to the different speeds
at which vessels of different sizes and configurations may travel while
in compliance with this definition, no specific speed is assigned to
minimum safe speed for navigation. In no instance should minimum safe
speed be interpreted as a speed less than that required for a
particular vessel to maintain steerageway. A vessel is not proceeding
at minimum safe speed if it is:
(1) On a plane;
(2) In the process of coming up onto or coming off a plane; or
(3) Creating an excessive wake or surge.
(b) Regulated Area. All navigable waters, as defined in 33 CFR
2.36, within the Captain of the Port Zone, Mobile, Alabama, as
described in 33 CFR 3.40-10.
(c) Security Zone. A 500-yard security zone is established around
each escorted vessel within the regulated area described in paragraph
(b) of this section. This is a moving security zone when the escorted
vessel is in transit and becomes a fixed zone when the escorted vessel
is anchored or moored. A security zone will not extend beyond the
boundary of the regulated area in this section.
(d) Regulations. (1) The general regulations for security zones
contained in Sec. 165.33 applies to this section.
(2) A vessel may request the permission of the COTP Mobile or a
designated representative to enter the security zone described in
paragraph (c) of this section. If permitted to enter the security zone,
a vessel must proceed at the minimum safe speed and must comply with
the orders of the COTP or a designated representative.
(e) Notice of Security Zone. The COTP will inform the public of the
existence or status of the security zones around escorted vessels in
the regulated area by broadcast notices to mariners, normally issued at
approximately 30-minute intervals while the security zones remains in
effect. Escorted vessels will be identified by the presence of Coast
Guard assets or other Federal, State or local law enforcement agency
assets, or the use of day boards or other visual indications such as
lights or buoys when the vessels are moored or anchored and law
enforcement assets are no longer on-scene, as specified in the
definition of escorted vessel in paragraph (a) of this section.
(f) Contact Information. The COTP Mobile may be reached via phone
at (251) 441-6211. Any on scene Coast Guard or designated
representative assets may be reached via VHF-FM channel 16.
Dated: October 7, 2008.
E.M. Stanton,
Captain, U.S. Coast Guard, Captain of the Port Mobile.
[FR Doc. E8-26900 Filed 11-12-08; 8:45 am]
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