[Federal Register: May 12, 2009 (Volume 74, Number 90)]
[Rules and Regulations]
[Page 22100-22103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my09-7]
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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: Final rule.
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SUMMARY: The Coast Guard is making permanent an interim rule
establishing a security zone around any vessel being escorted by one or
more Coast Guard assets, or other Federal, State, or local law
enforcement assets, within the Captain of the Port Zone Mobile, AL.
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 Mobile, AL or a
designated representative.
DATES: This rule is effective June 11, 2009.
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 USCG-2008-1013 and are available online by going to
http://www.regulations.gov, selecting the Advanced Docket Search option
on the right side of the screen, inserting USCG-2008-1013 in the Docket
ID box, pressing Enter, and then clicking on the item in the Docket ID
column. They are also available for inspection or copying two
locations: The 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, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays, and the Coast Guard
Sector Mobile Prevention Office located on South Broad Street, Mobile,
Alabama 36615, between 9 a.m. and 4 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call LT Jonathan Mangum at Coast Guard Sector Mobile Prevention
Department, at 251-441-5940. If you have questions on viewing the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On November 13, 2008, we published an Interim Rule with request for
comments (IR) entitled Security Zones; Escorted Vessels, Mobile, AL,
Captain of the Port Zone in the Federal Register (73 FR 67104). We
received comments from three commenters. No public meeting was
requested, and none was held.
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 found
that the security of the United States is and continues to have been
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) Zone Mobile, AL, as described in 33 CFR 3.40-10,
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. 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 Comments and Changes
All three commenters expressed concern that a 500-yard security
zone would exceed the width of some navigable waters in the COTP Zone
and thereby effectively shutdown navigation. These comments recognized
that the COTP Mobile intends to permit vessels to transit through the
zone if such transit can be done safely, but the commenters expressed
concern that the volume of maritime traffic in some of the waterways
may create congestion and delays. We appreciate these concerns, but it
is imperative that the law enforcement assets on-scene have an
adequately sized buffer zone around the vessel to increase their
ability to distinguish threats and to respond to threats that
materialize. We also do not believe that a 500-yard security zone, even
if extending bank-to-bank, will appreciably affect commercial
navigation. Law enforcement assets on-scene will be designated by the
COTP Mobile to allow safe transit through the zone, which is now
routinely done for the many safety and security zones throughout the
COTP Mobile zone without undue impact on navigation. The IR and this
Final Rule establish a permanent mechanism for vessels requiring escort
instead of using the ad-hoc security zone processes that had been COTP
Mobile's past practice, and in doing so provide law enforcement assets
with the appropriate legal basis and tools to ensure the security of
the marine transportation system. Accordingly, this Final Rule does not
change the size of the security zones established in the IR.
Two commenters expressed concern with the IR's provisions that
allow, in some instances, the continuation of a security zone while the
vessel is moored, even when law enforcement assets are not present.
These commenters explained that without law enforcement assets on-scene
the public would not be aware of the existence of the security zone,
and there would be no efficient mechanism for obtaining approval from
the COTP Mobile to transit through the zone. In instances where the
security zone will continue without law enforcement assets present, the
IR requires continued notice to the public through visible signs and
markings and a Broadcast Notice to Mariners. We believe these
requirements ensure sufficient notice to the public regarding the
establishment of the security zone. However, we do agree that the lack
of law enforcement assets on-scene in such cases could decrease the
COTP Mobile's response to requests to transit through the zone in
circumstances where that zone extends bank-to-bank or well into a
navigable channel. Therefore, in the final rule, we are amending the
definition of an escorted vessel to continue to permit the continuation
of a security zone under this Final Rule for an escorted vessel that is
moored, but only when Coast Guard or other Federal, State, or local
[[Page 22101]]
law enforcement assets remain on-scene to enforce the zone. Under the
final rule, notice is provided to the public that the security zone
remains in effect around a moored vessel through the continued presence
of these properly marked law enforcement assets and the Broadcast
Notice to Mariners. This change from the interim rule to the final rule
does not constrain COTP Mobile from taking any additional regulatory or
other action that may be deemed necessary to ensure the safety and
security of the marine transportation system. Continuing a security
zone around a moored vessel is unlikely to occur in most cases, further
minimizing impacts to navigation, but the COTP Mobile must retain the
flexibility to continue the security zone by maintaining the presence
of law enforcement assets while the vessel is moored to address
emerging threats without having to undertake additional rulemaking.
One commenter questioned how the public will know when a security
zone that remains around a moored vessel ends. While not specific, we
interpret this comment to relate to those situations where no law
enforcement assets remained on-scene to continue to enforce the zone.
We resolved this issue with the change noted above: The security zone
around an escorted vessel while moored will remain in effect only when
Coast Guard or other Federal, State, or local law enforcement assets
remain on-scene to enforce the zone. In the final rule, we modified
paragraph (e) Notice of Security Zone to also reflect this change. In
paragraph (e) we note that public notice about the existence of a
security zone will be continuously broadcast, typically at 30-minute
intervals, for the duration of the security zone, and escorted vessels
will be identified by the presence of law enforcement assets. Thus,
under the final rule, when all law enforcement assets depart the scene,
the security zone ends, and the Broadcast Notice to Mariners will
terminate, whether the vessel is underway or moored.
One commenter proposed that we provide 12-hours advance notice of a
security zone and disseminate this notice through a Marine Safety
Information Broadcast (MSIB). We did not adopt this proposal for
several reasons. Primarily, giving such broad and early notice to the
public increases the security risk to the escorted vessel, as well as
the Coast Guard and other agency escort assets, by providing advance
targeting information to potential terrorist threats. Also, many times
the Coast Guard may not know until shortly before a vessel's arrival
that an escort is required, making 12-hour advance notice impractical.
We believe that the visual notice provided by the presence of the
properly marked law enforcement escorts, usually undertaken well before
the vessel's arrival inside the port environment, as well as the
advance notice provided by the Broadcast Notice to Mariners, gives
ample awareness to the public of the security zone.
Another commenter proposed that non-Coast Guard assets escorting
vessels and enforcing the security zone be placed under Coast Guard
command responsibility. We disagree. Each law enforcement agency
supporting the escort and ensuring the integrity of the security zone
will be acting under its own organic legal authority. However, we will
ensure that the COTP has adequate communications with all law
enforcement assets involved in the escort to ensure adequate Coast
Guard oversight and response and appropriate COTP engagement.
Finally, one commenter questioned whether the Coast Guard had the
resources to sustain a continuous presence on-scene to enforce a
security zone around a moored vessel. Concerns about Coast Guard
capacity, and other law enforcement asset capabilities, are beyond the
scope of this rulemaking.
Regulatory Analyses
We developed this 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 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 trough the zones as
needed. Therefore, the security zones will not significantly impact
commercial and passenger vessel traffic patterns. Additionally,
mariners will be given advance notice of all security zones created
under this rule via broadcast notice to mariners.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the IR 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.
[[Page 22102]]
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. Although 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 does 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.
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 complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
This rule is categorically excluded, under figure 2-1, paragraph
(34)(g), of the Instruction. Paragraph (34)(g) covers regulations
establishing, disestablishing, or changing security zones. This rule
involves establishing security zones around escorted vessels in the
COTP Zone Mobile, AL. An environmental analysis checklist and a
categorical exclusion 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
Accordingly, the interim rule amending 33 CFR part 165, which was
published at 73 FR 67107 on November 13, 2008, is adopted as a final
rule with the following changes:
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, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5;
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Amend Sec. 165.836, as follows:
0
a. In paragraph (a), revise the definition of ``escorted vessel'' as
set forth below;
0
b. In paragraph (a), in the definition of ``minimum safe speed'',
remove the two occurrences of the phrase ``for navigation'';
0
c. In paragraph (c), remove the word ``in'' from the last sentence and
add in its place the phrase ``described in paragraph (b) of'';
0
d. In paragraph (d)(1), add the phrase ``of this part'' after ``Sec.
165.33'';
0
e. Revise paragraph (e) to read as set forth below.
The additions and revisions read as follows:
Sec. 165.836 Security Zone; Escorted Vessels, Mobile, Alabama,
Captain of the Port.
(a) * * *
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 some or all of those properly marked assets
[[Page 22103]]
remain on-scene to continue to enforce the security zone.
* * * * *
(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
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.
* * * * *
Dated: March 27, 2009.
E.M. Stanton,
Captain, U.S. Coast Guard Captain of the Port Mobile.
[FR Doc. E9-10969 Filed 5-11-09; 8:45 am]
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