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28 May 2008
[Federal Register: May 28, 2008 (Volume 73, Number 103)]
[Proposed Rules]
[Page 30560-30563]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my08-22]
[[Page 30560]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2007-0115]
RIN 1625-AA87
Security Zone; Escorted Vessels, Charleston, SC, Captain of the
Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Coast Guard is establishing a security zone around any
vessel being escorted by one or more Coast Guard, State, or local law
enforcement assets on the navigable waters of the Captain of the Port
Zone, Charleston, South Carolina. This action is necessary to ensure
the safe transit 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.
DATES: This interim rule is effective May 28, 2008. Comments and
related material must reach the Docket Management Facility on or before
June 27, 2008.
ADDRESSES: You may submit comments identified by Coast Guard docket
number USCG-2007-0115 to the Docket Management Facility at the U.S.
Department of Transportation. To avoid duplication, please use only one
of the following methods:
(1) Online: http://www.regulations.gov.
(2) 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.
(3) Hand delivery: Room W12-140 on the Ground Floor of the West
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
(4) Fax: 202-493-2251.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call LT Calvin Summers at Sector Charleston (843) 720-3273. 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. We have an agreement with the
Department of Transportation (DOT) to use the Docket Management
Facility. Please see DOT's ``Privacy Act'' paragraph below.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2007-0115), indicate the specific section of this
document to which each comment applies, and give the reason for each
comment. 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.
For example, we may ask you to resubmit your comment if we are not able
to read your original submission. You may submit your comments and
material by electronic means, mail, fax, or delivery to the Docket
Management Facility at the address under ADDRESSES; but please submit
your comments and material by only one means. If you submit them by
mail or 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. We may change this rule in view of them.
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 at
any time. Enter the docket number for this rulemaking (USCG-2007-0115)
in the Search box, and click ``Go >>.''. You may also visit either the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT 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 the Coast Guard Sector Charleston (WWM), 196 Tradd Street,
Charleston, South Carolina 29401 between 7:30 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
Privacy Act
Anyone can search the electronic form of all 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 the Department of
Transportation's Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477), or you may visit http://
DocketsInfo.dot.gov.
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 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
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 an NPRM. 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 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. The Coast Guard coordinates escorts for
vessels in the Captain of the Port Zone Charleston, South Carolina for
the port's safety and security. Recently, recreational boaters have
endangered themselves and others by not following the verbal guidance
of on-scene law enforcement officials. To ensure safe boating, it is
imperative that a standard exclusionary zone be broadcast and safe
speeds be followed for all escorted vessels.
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 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
[[Page 30561]]
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. 13,273, 67 FR 56215, Sep.
3, 2002 and 72 FR 54205, Sep. 21, 2007). Additionally, national
security and intelligence officials continue to warn that future
terrorist attacks are likely.
The ports within the Captain of the Port (COTP) Charleston
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 3.35-15. This rule enables the
COTP Charleston 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 Rule
This rule establishes a security zone that prohibits persons and
vessels from coming within 300 yards of all escorted vessels within the
navigable waters of the COTP Charleston 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 and must comply with all
orders issued by the COTP or a designated representative. No vessel or
person may come within 50 yards of any escorted vessel. An escorted
vessel will be defined as 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 lights, vessel
markings, or with agency insignia as listed below:
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.
When escorted vessels are moored, dayboards or other visual
indications such as lights or buoys may be used. In all cases,
broadcast notice to mariners will be issued to advise mariners of these
restrictions.
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 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 Charleston.
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. This rule would not have a
significant impact on a substantial number of small entities because
the zones are limited in size, in most cases leaving ample space for
vessels to navigate around them. The zones will not significantly
impact commercial and passenger vessel traffic patterns, and mariners
will be notified of the zones via Broadcast Notice to Mariners. Where
such space is not available and security conditions permit, the COTP
will attempt to provide flexibility for individual vessels to transit
through the zones as needed.
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.
[[Page 30562]]
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 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 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. A final ``Environmental Analysis Check
List'' and a final ``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, and Waterways.
Words of Issuance and Regulatory Text
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; 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.
2. Add 165.769 to read as follows:
Sec. 165.769 Security Zone; Escorted Vessels, Charleston, South
Carolina, Captain of the Port.
(a) Definitions. The following definitions apply to this section:
COTP means Captain of the Port Charleston, SC.
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 lights, vessel
markings, or with agency insignia as listed below:
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.
When escorted vessels are moored, dayboards or other visual
indications such as lights or buoys may be used. In all cases,
broadcast notice to mariners will be issued to advise mariners of these
restrictions.
Minimum safe speed means the speed at which a vessel proceeds when
it is fully off plane, completely settled in the water and not creating
excessive wake. 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.
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.
(b) Regulated Area. All navigable waters, as defined in 33 CFR
2.36, within the Captain of the Port Zone, Charleston, South Carolina
33 CFR 3.35-15.
(c) Security Zone. A 300-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 of this part applies to this section.
(2) A vessel may request the permission of the COTP Charleston 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. No vessel or
person may enter the inner 50-yard portion of the security zone closest
to the vessel.
(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 Notice to Mariners. Coast Guard assets
or other Federal, State or local law enforcement agency assets will be
clearly identified by lights, vessel markings, or with agency insignia.
When escorted vessels are moored, dayboards or other visual indications
such as lights or buoys may be used.
[[Page 30563]]
(f) Contact Information. The COTP Charleston may be reached via
phone at (843) 724-7616. Any on scene Coast Guard or designated
representative assets may be reached via VHF-FM channel 16.
Dated: May 15, 2008.
M. F. McAllister,
Captain, U.S. Coast Guard, Captain of the Port, Charleston, South
Carolina.
[FR Doc. E8-11863 Filed 5-27-08; 8:45 am]
BILLING CODE 4910-15-P