[Federal Register: November 13, 2008 (Volume 73, Number 220)]
[Rules and Regulations]               
[Page 67104-67107]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no08-4]                         

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

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.

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

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]

BILLING CODE 4910-15-P