
[Federal Register: March 27, 2009 (Volume 74, Number 58)]
[Rules and Regulations]               
[Page 13343-13345]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr09-10]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2009-0006]
RIN 1625-AA87

 
Temporary Moving Security Zone; Freeport Channel Entrance, 
Freeport, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary 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 would extend 1,000 yards ahead and 
astern and 500 yards on each side of certain vessels, which will 
display the international signal flag or pennant number five to signal 
a security zone is established around the vessel. 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 Captain of the Port Houston-Galveston.

DATES: This rule is effective from 12 p.m. (noon) on January 15, 2009 
until 12 a.m. on April 31, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket [USCG-2009-0006] 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-
2009-0006 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 Marine Safety Unit Galveston, 3101 FM 2004, Texas 
City, TX 77591, between 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Cliff Harder, Marine Safety 
Unit Galveston, Texas, at (409) 978-2705. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM, and under 5 U.S.C. 553(d)(3), 
good cause exists for making this rule effective less than 30 days 
after publication in the Federal Register. Publishing a NPRM and 
delaying its effective date would be contrary to public interest since 
immediate action is needed to reduce potential methods of attack on 
vessels, waterfront facilities, and adjacent population centers located 
within the zones.

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 is establishing temporary moving 
security zones around escorted vessels.
    This rule would establish 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 would be 
established to protect waterfront facilities, persons, and vessels from 
subversive or terrorist acts.

[[Page 13344]]

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. All vessels 
around which a security zone is deemed necessary will display the 
international signal flag or pennant number five, to signal that there 
is a security zone established around the vessel. 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 
security zones must obtain express permission from the Captain of the 
Port Houston-Galveston or his designated representative prior to entry.

Discussion of Rule

    The Coast Guard is establishing 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 will be activated for certain vessels within the 
Captain of the Port Houston-Galveston zone commencing at U.S. 
territorial waters through the Freeport Entrance Channel, extending 
from the surface to the sea floor. These moving security zones are 
established as follows: 1,000 yards ahead and astern and 500 yards on 
each side of certain vessels while in transit. Unless exempted under 
this rule, these moving security zones would prohibit entry into or 
movement within this portion of the Captain of the Port Houston-
Galveston zone without Captain of the Port authorization. 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.
    All vessels not exempted under this rule would be prohibited from 
entering these security zones unless authorized by the Captain of the 
Port Houston-Galveston or his designated representative. In Houston, 
vessels can contact the Captain of the Port Houston-Galveston through 
Vessel Traffic Service Houston/Galveston on VHF Channel 5A, by 
telephone at 713-671-5103, or by facsimile at 713-671-5159. In 
Freeport, vessels can contact the Captain of the Port Houston-Galveston 
through Marine Safety Unit Galveston, by telephone at 409-978-2700, or 
by facsimile at 409-978-2671. This rule is effective from 12 p.m. 
(noon) on January 15, 2009 until 12 a.m. on April 31, 2009.

Regulatory Evaluation

    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 under the regulatory policies and procedures 
of DHS 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. 
Additionally, any other vessel wishing to enter the security zone may 
request permission to do so.

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 
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), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Lieutenant Cliff Harder at 409-
978-2705. 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 would call 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 would not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would 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 would not create an 
environmental risk to health or risk to safety that might 
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 would not have a substantial

[[Page 13345]]

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 would not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides 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 which 
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 temporarily establishing a 
security zone in the Captain of the Port Houston-Galveston zone.
    Neither an environmental assessment nor an environmental impact 
statement is required. An ``Environmental Analysis Check List'' and a 
categorical exclusion 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 proposes to 
amend 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; 3306; 
3706; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T818 to read as follows:


Sec.  165.T818   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 (1,000) yards ahead and astern and five 
hundred (500) yards on each side of any vessel within the 12 nautical 
mile U.S. Territorial Waters in the Captain of the Port Houston-
Galveston zone that displays the international signal flag or pennant 
number five.
    (b) Definitions. For the purposes of this section:
    Designated Representative means any U.S. Coast Guard commissioned, 
warrant or petty officer who has been authorized by the Captain of the 
Port, Houston-Galveston, to assist in the enforcement of the security 
zone.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into this zone is prohibited unless 
authorized by the Captain of the Port Houston-Galveston or a designated 
representative.
    (2) Entry into or remaining in the security zones described in 
paragraph (a) of this section is prohibited for all vessels except:
    (i) Moored vessels or vessels anchored in a designated anchorage 
area. 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 Houston-Galveston to do otherwise;
    (ii) Commercial vessels operating at the waterfront facilities 
within these security zones;
    (iii) Commercial vessel transiting directly to or from waterfront 
facilities within these security zones;
    (iv) Vessels providing direct operational/logistic support to 
commercial vessels within these security zones;
    (v) Vessels operated by the port authority or by facilities located 
within these security zones; and
    (vi) Vessels operated by federal, state, county, or municipal 
agencies;
    (3) 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.
    (4) 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 
Houston Galveston's designated representative for the moving security 
zone on VHF Channel 16, or by telephone at 979-233-7551.
    (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.

    Dated: January 15, 2009.
William J. Diehl,
Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.
 [FR Doc. E9-6820 Filed 3-26-09; 8:45 am]
