[Federal Register Volume 68, Number 86 (Monday, May 5, 2003)]
[Rules and Regulations]
[Pages 23591-23594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10944]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Houston-Galveston-02-009]
RIN 1625-AA00 [Formerly RIN 2115-AA97]


Security Zones; Captain of the Port Houston-Galveston Zone

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing security zones within the 
Ports of Houston, Morgan's Point, Bayport, Texas City, and Freeport, 
Texas. These zones are needed to protect waterfront facilities, 
persons, and vessels from subversive or terrorist acts. Entry of 
persons and vessels into these zones is prohibited except as authorized 
by this rule or by the Captain of the Port Houston-Galveston.

DATES: This rule is effective April 15, 2003.

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 [COTP Houston-Galveston-02-

[[Page 23592]]

009] and are available for inspection or copying at Marine Safety 
Office Houston-Galveston, 9640 Clinton Drive, Galena Park, TX, 77547, 
between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade (LTJG) George 
Tobey, Marine Safety Office Houston-Galveston, Port Waterways 
Management, at (713) 671-5100.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On June 11, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Captain of the Port Houston and 
Galveston Zone'' [COTP Houston-Galveston-02-009] (67 FR 39919). The 
comment period for the NPRM expired on August 12, 2002. We received 
only two comments on this rule and both comments requested information 
on how to comment on the proposed rule. On December 10, 2002, as a 
result of those comments and to reflect changes in the size of the 
security zones proposed, we published a supplemental notice of proposed 
rulemaking (SNPRM) entitled ``Security Zones; Captain of the Port 
Houston-Galveston Zone'' [COTP Houston-Galveston-02-009] (67 FR 75831). 
Prior to the SNPRM being published we received one additional comment. 
That comment is treated as if it was submitted in response to the 
SNPRM. No public hearing was requested, and none was held.
    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. National security and intelligence 
officials continue to warn that future terrorist attacks against United 
States interests are likely. The temporary final rule published in the 
Federal Register on May 1, 2002 (67 FR 21578) as amended on June 11, 
2002 (67 FR 39848) and extended on November 5, 2002 (67 FR 67301) 
expires on April 15, 2003. This rule replaces the original temporary 
final rule. Any delay in making this rule effective would be contrary 
to the public interest because action is necessary to protect against 
the possible loss of life, injury, or damage to property.

Background and Purpose

    On September 11, 2001, both towers of the World Trade Center and 
the Pentagon were attacked by terrorists. The President has continued 
the national emergencies he declared following those attacks (67 FR 
58317 (Sep. 13, 2002) (continuing the emergency declared with respect 
to terrorist attacks); 67 FR 59447 (Sep. 20, 2002) (continuing 
emergency with respect to persons who commit, threaten to commit or 
support terrorism)). The President also has found pursuant to law, 
including the Act of June 15, 1917, as amended August 9, 1950, by the 
Magnuson Act (50 U.S.C. 191, et seq.), that the security of the United 
States is and continues to be endangered following the terrorist 
attacks (E.O. 13,273, 67 FR 56215 (Sep. 3, 2002) (security of U.S. 
endangered by disturbances in its international relations and such 
disturbances continue to endanger such relations)).
    In response to those terrorist acts, heightened awareness for the 
security and safety of all vessels, ports, and harbors is necessary. 
The Captain of Port Houston-Galveston established temporary security 
zones around highly industrial areas within the Captain of the Port 
Houston-Galveston Zone. These zones were published on June 11, 2002 
[COTP Houston-Galveston-02-011](67 FR 39851) and November 5, 2002 [COTP 
Houston-Galveston-02-018](67 FR 67301).
    On June 11, 2002, we published an NPRM entitled ``Security Zones; 
Captain of the Port Houston-Galveston Zone'' [COTP Houston-Galveston-
02-009] (67 FR 39919). The comment period for the NPRM expired on 
August 12, 2002. We received only two comments on this rule and both 
comments requested information on how to comment on the proposed rule. 
On 10 December, 2002, as a result of those comments and to reflect 
changes in the size of the security zones proposed, we published a 
supplemental notice of proposed rulemaking (SNPRM) entitled ``Security 
Zones; Captain of the Port Houston-Galveston Zone'' [COTP Houston-
Galveston-02-009] (67 FR 75831).

Discussion of Comments and Changes

    We received a total of three comments on the proposed rule. Two 
comments requested information on how to comment on the proposed rule. 
No follow-up comments were received for either. The third comment was 
in support of the proposed rule. No comment suggested that any changes 
should be made to the proposed rule. Therefore, we have made no changes 
to the provisions of the proposed rule.

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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    The impacts on routine navigation are expected to be minimal. Due 
to the highly industrialized nature of the areas in the vicinity of the 
zones, they are of limited interest to recreational boaters. Vessels 
engaged in commerce, assisting facilities located within a zone, or 
having the express permission of the Captain of the Port Houston-
Galveston are authorized entry into a zone under this rule.

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. These security zones will not have an impact on a substantial 
number of small entities because this rule will not obstruct the 
regular flow of commercial vessel traffic conducting business within 
the zones. Other vessels may seek permission for entry into the zones 
from the Captain of the Port Houston-Galveston.
    If you are a small business entity and are significantly affected 
by the regulation please contact LTJG George Tobey at U.S. Coast Guard 
Marine Safety Office Houston-Galveston, at (713) 671-5100.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this 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 Regulatory Enforcement Ombudsman and 
the Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's

[[Page 23593]]

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).

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.

Environment

    We have analyzed this rule under Commandant Instruction M16475.l, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (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, 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.


0
2. Add Sec.  165.814 to read as follows:


Sec.  165.814  Security Zones; Captain of the Port Houston-Galveston 
Zone.

    (a) Location. The following areas are designated as security zones:
    (1) Houston, Texas. The Houston Ship Channel and all associated 
turning basins, bounded by a line drawn between Houston Ship Channel 
Light 132 (LLNR-24445) and Houston Ship Channel Light 133 (LLNR-24450) 
west to the T & N Rail Road Swing Bridge at the entrance to Buffalo 
Bayou, including all waters adjacent to the ship channel from shoreline 
to shoreline and the first 200 yards of connecting waterways.
    (2) Morgan's Point, Texas. The Barbours Cut Ship Channel and 
Turning Basin containing all waters west of a line drawn between 
Junction Light ``Barbours Cut'' 29[deg]41'12'' N, 94[deg]59'12'' W 
(LLNR-23525), and Houston Ship Channel Light 91, 29[deg]41'00'' N, 
94[deg]59'00'' W (LLNR-23375) (NAD 1983).
    (3) Bayport, TX. The Port of Bayport, Bayport Ship Channel and 
Bayport Turning Basin containing all waters south of latitude 
28[deg]36'45'' N and west of Bayport Ship Channel Light 9 (LLNR-23295) 
(NAD 1983).
    (4) Texas City, Texas. The Port of Texas City Channel, Turning 
Basin and Industrial Canal containing all waters bounded by the area 
south and west of a line drawn from Texas City Channel Light 19 (LLNR 
24810) through Cut B Inner Range Front Light (LLNR 24765) and 
terminating on land in position 29[deg]23'16'' N, 94[deg]53'15'' W (NAD 
1983).
    (5) Freeport, Texas. (i) The Dow Barge Canal containing all waters 
bounded by its junction with the Intracoastal Waterway, by a line drawn 
between the eastern point at latitude 28[deg]56'48'' N, 95[deg]18'20'' 
W, and the western point at 28[deg]56'40'' N, 95[deg]18'33'' W (NAD 
1983).
    (ii) The Brazos Harbor containing all waters west of a line drawn 
between the northern point at 28[deg]56'27'' N, 95[deg]20'00'' W, and 
the southern point 28[deg]56'09'' N, 95[deg]20'00'' W (NAD 1983) at its 
junction with the Old Brazos River Cut.
    (b) Effective dates. This section is effective on April 15, 2003.
    (c) Regulations. (1) Entry of into these zones is prohibited except 
for the following:
    (i) Commercial vessels operating at waterfront facilities within 
these zones;
    (ii) Commercial vessels transiting directly to or from waterfront 
facilities within these zones;
    (iii) Vessels providing direct operational/logistic support to 
commercial vessels within these zones;
    (iv) Vessels operated by the appropriate port authority or by 
facilities located within these zones; and

[[Page 23594]]

    (v) Vessels operated by federal, state, county, or municipal 
agencies.
    (2) Other persons or vessels requiring entry into a zone described 
in this section must request express permission to enter from the 
Captain of the Port Houston-Galveston, or designated representative.
    (3) To request permission as required by these regulations contact 
``Houston Traffic'' via VHF Channels 11/12 or by phone at (713) 671-
5103.
    (4) All persons and vessels shall 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.

    Dated: March 28, 2003.
Kevin S. Cook,
Captain, U.S. Coast Guard, Captain of the Port, Houston-Galveston.
[FR Doc. 03-10944 Filed 5-2-03; 8:45 am]
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