[Federal Register Volume 74, Number 90 (Tuesday, May 12, 2009)]
[Rules and Regulations]
[Pages 22100-22103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10969]


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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]
BILLING CODE 4910-15-P