[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8489-8491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3832]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0125]
RIN 1625-AA87


Security Zone; Freeport Channel Entrance, Freeport, TX

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard has established moving security zones for 
certain vessels, for which the Captain of the Port, Houston-Galveston 
deems enhanced security measures necessary on a case-by-case basis. 
These moving security zones extend 1,000 yards ahead and astern and 500 
yards on each side of certain vessels. The moving security zone may 
commence at any point after certain vessels bound for the Port of 
Freeport enter the U.S. territorial waters (12 nautical miles) in the 
Captain of the Port Houston-Galveston zone. These security zones are 
needed to safeguard the vessels, the public, and the surrounding area 
from sabotage or other subversive acts, accidents, or other events of a 
similar nature. Unless exempted under this rule, entry into or movement 
within these security zones would be prohibited without permission from 
the COTP Houston-Galveston.

DATES: This rule is effective March 29, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0125 and are available online by going to 
http://www.regulations.gov, inserting USCG-2008-0125 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Lieutenant Commander Kevin Ivey, Marine Safety Unit 
Galveston, Coast Guard; telephone 409-978-2704, e-mail 
<a href="/cdn-cgi/l/email-protection#1a517f6c7374345634536c7f635a6f69797d34777376"><span class="__cf_email__" data-cfemail="78331d0e1116563456310e1d01380d0b1b1f56151114">[email protected]</span></a>. 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 April 30, 2009, we published a notice of proposed rulemaking 
(NPRM) entitled Security Zone; Freeport Channel Entrance, Freeport, TX 
in the Federal Register (33 FR 19923). We received two comments on the 
proposed rule. No parties requested public meetings and none were held.

Background and Purpose

    Heightened awareness of potential terrorist acts requires enhanced 
security of our ports, harbors, and vessels; to enhance security, the 
Captain of the Port Houston-Galveston has established moving security 
zones around escorted vessels.
    This rule establishes distinct moving security zones that may 
commence at any point after certain vessels bound for the Port of 
Freeport enter the 12-nautical-mile U.S. territorial waters in the 
Captain of the Port Houston-Galveston zone. These zones are established 
to protect waterfront facilities, persons, and vessels from subversive 
or terrorist acts. Vessels operating within the Captain of the Port 
Houston-Galveston Zone are potential targets of terrorist attacks, or 
potential launch platforms for terrorist attacks on other vessels, 
waterfront facilities, and adjacent population centers.
    Due to the potential for terrorist attacks, this rule would allow 
the Captain of the Port to create moving security zones around certain 
vessels as deemed necessary, on a case-by-case basis. By limiting 
access to these areas, the Coast Guard is reducing potential methods of 
attack on vessels, waterfront facilities, and adjacent population 
centers located within these security zones. Vessels having a need to 
enter these zones must obtain express permission from the Captain of 
the Port Houston-Galveston or his designated representative prior to 
entry.

Discussion of Comments and Changes

    The Coast Guard received two comments on the proposed rule. One 
comment was in regard to clarification of whether the security zone 
pertained to all ships or just LNG ships. The security zone is not 
established solely for LNG ships. The second comment made was in regard 
to clarification of whether the security zones pertain to the land as 
well as the water. The security zone covers only the water, and not the 
land.
    We made no changes to the rule based on these comments. The Coast 
Guard is implementing the rule as it was proposed in the notice of 
proposed rulemaking (33 FR 19923).

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 basis of this finding is that the duration of the security 
zones is limited in nature and would not create undue delay to vessel 
traffic in and around the Port of Freeport.

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.

[[Page 8490]]

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 
would not have a significant economic impact on a substantial number of 
small entities. This rule would not have a significant economic impact 
on a substantial number of small entities for the following reason: The 
duration of the security zones is limited in nature and would not 
create undue delay to vessel traffic in and around the Port of 
Freeport.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.

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 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 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 023-01 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 because this rule involves a regulation 
establishing, disestablishing, or changing Regulated Navigation Areas 
and security or safety zones.
    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
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, 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. Added new Sec.  165.818 to read as follows:


Sec.  165.818  Moving Security Zones, for Certain Vessels in Freeport 
Entrance Channel, Freeport, Texas.

    (a) Location. The following areas are security zones: All waters 
within the Captain of the Port Houston-Galveston Zone commencing at 
U.S. territorial waters through the Freeport Entrance Channel, from 
surface to bottom, one thousand (1000) yards ahead and astern and five 
hundred (500) yards on each side of any vessel that has a moving 
security zone established around it.
    (b) Regulations. Entry into or remaining in the zones described in

[[Page 8491]]

paragraph (a) of this section is prohibited unless authorized as 
follows:
    (1) Moored vessels or vessels anchored in a designated anchorage 
area are permitted to remain moored or anchored if they come within a 
security zone described in paragraph (a) of this section. A moored or 
an anchored vessel in a security zone must remain moored or anchored 
unless it obtains permission from the Captain of the Port to do 
otherwise.
    (2) Commercial vessels operating at the waterfront facilities 
within these zones.
    (3) Commercial vessel transiting directly to or from waterfront 
facilities within these zones.
    (4) Vessels providing direct operational/logistic support to 
commercial vessels within these zones.
    (5) Vessels operated by the port authority or by facilities located 
within these zones.
    (6) Vessels operated by Federal, State, county, or municipal 
agencies.
    (7) All persons and vessels within the moving security zone must 
comply with the instructions of the Captain of the Port Houston-
Galveston and designated on-scene U.S. Coast Guard patrol personnel. 
On-scene U.S. Coast Guard patrol personnel include commissioned, 
warrant, and petty officers of the U.S. Coast Guard.
    (8) To request permission as required by these regulations, contact 
the Sector Houston-Galveston Command Center by telephone at (713) 671-
5113. In Freeport, vessels should contact the Captain of the Port's 
designated on-scene representative for the moving security zone on VHF 
Channel 16, or by telephone at (979) 233-7551.
    (c) Certain vessel definition. For the purposes of this section, 
certain vessel means any vessel within the 12 nautical mile U.S. 
Territorial Waters and bound for the Port of Freeport that is deemed to 
be in need of a moving security zone by the Captain of the Port, 
Houston-Galveston for security reasons. In making this determination, 
the Captain of the Port considers all relevant security factors, 
including but not limited to the presence of unusually harmful or 
hazardous substances and the risk to population or infrastructure.
    (d) Informational broadcasts. The Captain of the Port Houston-
Galveston will inform the public when moving security zones have been 
established around certain vessels via Broadcast Notice to Mariners on 
VHF channel 16 and 13. Vessels that have a moving security zone in 
place around them will display the international signal flag or pennant 
number five.
    (e) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

    Dated: December 28, 2009.
M.E. Woodring,
Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.
[FR Doc. 2010-3832 Filed 2-24-10; 8:45 am]
BILLING CODE 9110-04-P


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