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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2008-0440] 
          - RIN 1625-AA87 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Final rule. 

# SUMMARY:

The Coast Guard is establishing a permanent security zone of 100 yards around the Coast Guard Base in San Juan, Puerto Rico. The security zone is needed for national security reasons to protect the public and the Coast Guard base from potential subversive acts. This rule would exclude entry into the security zone by all vessels and personnel without permission of the U.S. Coast Guard Captain of the Port San Juan (COTP). 

# DATES:

This rule is effective April 6, 2009. 

# 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-2008-0440 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-2008-0440 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. This material is also available for inspection or copying at 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 USCG Sector San Juan, Prevention Operations Department, 5 Calle La Puntilla, San Juan, Puerto Rico 00901 between 7:30 a.m. and 3 p.m., Monday through Friday, except Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Lieutenant Junior Grade Rachael Love of Sector San Juan, Prevention Operations Department at (787) 289-2071. 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 September 30, 2008, we published a notice of proposed rulemaking (NPRM) entitled Security Zone; Coast Guard Base San Juan, San Juan Harbor, Puerto Rico in the                     **Federal Register**                     (73 FR 56773). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.                 

## Background and Purpose 

The Coast Guard docking facilities at La Puntilla in Old San Juan are home to six Coast Guard cutters and six Coast Guard small boats. Incidents of unknown vessels mooring up to the Coast Guard piers have occurred twice in the past year. In addition, suspected surveillance in the form of photography has been performed by unknown individuals located in close proximity to the Coast Guard base on more than one occasion. These incidents pose a potential threat to national security and may lead to subversive acts against the personnel or equipment located at the Coast Guard base. 

This rulemaking attempts to solve the problem by prohibiting all persons and vessels from entering in, transiting through or remaining in a security zone extending 100 yards seaward from the water's edge of the Coast Guard La Puntilla facility. 

## Discussion of Comments and Changes 

No comments were received as a result of publishing the NPRM; therefore no changes have been made to the regulatory text. 

## 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. 

This rule is not a significant regulatory action because the security zone only extends 100 yards from Base San Juan and does not impede any regular vessel traffic (i.e., cruise ships, ferries, small passenger vessels, etc.). Vessels will be able to transit safely around the zone. In the event that a vessel or person feels the need to temporarily transit through the proposed security zone, the COTP will handle the requests on a case-by-case basis. 

## 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 would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the proposed zone. The impact would not be economically significant because vessels would be able to transit around the zone. The zone does not encompass any portions of any shipping channels and would only affect those vessels transiting the area adjacent to the Coast Guard facility. 

## 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. 

                    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                           ( print page 9769)                        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 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 that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Therefore, this rule is categorically excluded, under section 2.B.2, figure 2-1, paragraph (34)(g), of the Instruction. Paragraph (34)(g) covers regulations establishing, disestablishing, or changing security zones. This rule involves establishing a security zone at the Coast Guard Base in San Juan, Puerto Rico. 

                    Neither an environmental assessment nor an environmental impact statement is required. 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

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 

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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 

2. Add § 165.776 to read as follows: 

§ 165.776 

                            (a)                             *Location*. The following area is a security zone: All waters from surface to bottom, encompassed by an imaginary line connecting the following points, beginning at 18°27′39″ N, 066°06′56″ W; then east to Point 2 at 18°27′39″ N, 066°06′52″ W; then south to Point 3 at 18°27′35″ N, 066°06′52″ W; then southwest to Point 4 at 18°27′30″ N, 066°06′59″ W; then northeast to Point 5 at 18°27′25″ N, 066°07′07″ W; then north to Point 6 at 18°27′46″ N, 066°07′10″ W; then back to shore at the northwest end of the CG facility at Point 7 at 18°27′46″ N, 066°07′07″ W. These coordinates are based upon North American Datum 1983.                         

                            (b)                             *Definitions*. As used in this section—                        

*Vessel*                             means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, except U.S. Coast Guard or U.S. naval vessels.                                   ( print page 9770)    

                            (c)                             *Regulations*. (1) No person or vessel may enter into the security zone described in paragraph (a) of this section unless authorized by the Captain of the Port San Juan.                         

(2) Vessels seeking to enter the security zone established in this section may contact the COTP on VHF channel 16 or by telephone at (787) 289-2041 to request permission.

Dated: February 5, 2009. 

E. Pino, 

Captain, U.S. Coast Guard, Captain of the Port San Juan.

[FR Doc. E9-4812 Filed 3-5-09; 8:45 am] 

BILLING CODE 4910-15-P