[Federal Register Volume 69, Number 218 (Friday, November 12, 2004)]
[Rules and Regulations]
[Pages 65373-65375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25129]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Mobile-04-034]
RIN 1625-AA87


Security Zone; Port of Mobile, Mobile Ship Channel, Mobile, AL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary security zones 
around all cruise ships while transiting or moored in the Port of 
Mobile and Mobile Ship Channel shoreward of the Mobile Sea Buoy. These 
security zones are needed to ensure the safety and security of these 
vessels. Entry into these zones is prohibited, unless specifically 
authorized by the Captain of the Port Mobile, or a designated 
representative.

DATES: This rule is effective from 8 a.m. (c.s.t.) on October 14, 2004, 
until 6 p.m. (c.s.t.) on April 14, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP Mobile-04-034] and are available 
for inspection or copying at Marine Safety Office Mobile, Brookley 
Complex, Bldg 102, South Broad Street, Mobile, AL 36615-1390 between 8 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (LT) Maurice York, 
Operations Department, Marine Safety Office Mobile, at (251) 441-5940.

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 an 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 an NPRM and 
delaying its effective date would be contrary to public interest 
because immediate action is needed to protect cruise ships and 
passengers from destruction, loss, or injury from sabotage or other 
subversive acts, accidents, or other causes of a similar nature while a 
cruise ship is transiting the Mobile Ship Channel or Port of Mobile, 
and while moored in the Port of Mobile.
    This rule is temporary. But because of continued security concerns, 
the Coast Guard does intend to establish similar permanent security 
zones. A NPRM will be published in the Federal Register and will allow 
the public an opportunity to comment on that proposed rule.

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 (69 FR 
55313, Sep. 13, 2004) (continuing the emergency declared with respect 
to terrorist attacks); (69 FR 56923, Sep. 22, 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 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 international relations of U.S and 
such disturbances continue to endanger such relations)). In response to 
these terrorist acts and warnings, heightened awareness for the 
security and safety of all vessels, ports, and harbors is necessary. 
Due to the increased security concerns surrounding the transit of 
cruise ships, the Captain of the Port Mobile is establishing a 
temporary security zone around all cruise ships while such vessels are 
transiting the Mobile Ship Channel or Port of Mobile, and while moored 
in the Port of Mobile.

Discussion of Rule

    The Coast Guard is establishing temporary security zones for the 
Port of Mobile and Mobile Ship channel. This rule establishes security 
zones that prohibit movement within 25 yards of all cruise ships while 
moored in the Port of Mobile, and prohibits movement within 100 yards 
of any cruise ship while transiting the Mobile Ship Channel or the Port 
of Mobile. For the purpose of this rule the term ``cruise ship'' is 
defined as a passenger vessel over 100 gross tons, carrying more than 
12 passengers for hire, making a voyage lasting more than 24 hours any 
part of which is on the high seas, and for which passengers are 
embarked or disembarked in the United States or its territories. This 
definition covers passenger vessels that must comply with 33 CFR parts 
120 and 128.
    These security zones will be enforced when a cruise ship transiting 
inbound passes the Mobile Sea Buoy in approximate position 
28[deg]07[min]50[sec] N, 88[deg]04[min]12[sec] W, at all times during 
transit through the Mobile Ship Channel and Port of Mobile, and while 
moored in the Port of Mobile. A security zone will exist during each 
cruise ship's transit outbound the Port of Mobile and the Mobile Ship 
Channel. Enforcement of the security zone will cease once the cruise 
ship passes the Mobile Sea Buoy on its outbound voyage.
    These security zones are needed to protect the safety of life, 
property and the environment in the area. All vessels are prohibited 
from moving within these zones unless specifically authorized by the 
Captain of the Port Mobile, or a designated representative.
    Persons or vessels that desire to enter into one of these security 
zones for the purpose of passing or overtaking a cruise ship that is in 
transit on the Mobile Ship Channel or in the Port of Mobile must 
contact the on-scene Coast Guard representative, request permission to 
conduct such action, and receive authorization from the on-scene Coast 
Guard representative prior to initiating such action. The on-scene 
Coast Guard representative may be contacted on VHF-FM channel 16. All 
persons and vessels authorized to enter into a security zone must obey 
any direction or order of the Captain of the Port or designated 
representative.
    The Captain of the Port Mobile or a designated representative will 
inform the public through broadcast notice to mariners of the 
enforcement periods for these security zones.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of

[[Page 65374]]

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).
    These security zones will only be enforced while cruise ships are 
located shoreward of the Mobile Sea Buoy, are transiting the Mobile 
Ship Channel, and are moored in the Port of Mobile. Once a cruise ship 
is moored in the Port of Mobile, the security zone will be reduced to 
only 25 yards around the cruise ship. While the cruise ship is moored, 
other vessels will be able to safely transit around this zone provided 
they approach no closer than 25 yards. Additionally, while a cruise 
ship is in transit on the Mobile Ship Channel or in the Port of Mobile, 
the Captain of the Port or a designated representative may allow other 
persons or vessels to enter into the security zone for the purpose of 
passing or overtaking a cruise ship if such persons or vessels obtain 
permission from the on-scene Coast Guard representative prior to 
initiating such action.
    Notifications of the enforcement periods of these security zones 
will be made to the marine community through broadcast notice to 
mariners. The impacts on routine navigation are expected to be minimal.

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 for the reasons enumerated under the Regulatory Evaluation 
section of this rule.
    If you are a small business entity and are significantly affected 
by this regulation please contact LT Maurice York, Operations 
Department, Marine Safety Office Mobile, at (251) 441-5940.

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 the rule so they may 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 this rule 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 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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs 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.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 because this rule is not expected to result 
in any significant adverse environmental impact as described in the 
National Environmental Policy Act of 1969 (NEPA).
    A final ``Environmental Analysis Checklist'' and a final 
``Categorical Exclusion Determination'' will be

[[Page 65375]]

available for inspection or copying 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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. A new Sec.  165.T08-139 is added to read as follows:


Sec.  165.T08-139  Security Zone; Port of Mobile, Mobile Ship Channel, 
Mobile, AL.

    (a) Definition. As used in this section--
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories. 
This definition covers passenger vessels that must comply with 33 CFR 
parts 120 and 128.
    (b) Location. The following areas are security zones: all waters of 
the Port of Mobile and Mobile Ship Channel--
    (1) Within 100 yards of a cruise ship that is transiting shoreward 
of the Mobile Sea Buoy (located in approximate position 
28[deg]07[min]50[sec] N, 88[deg]4[min]12[sec] W; NAD 83), and
    (2) Within 25 yards of a cruise ship that is moored shoreward of 
the Mobile Sea Buoy.
    (c) Effective period. This section is effective from 8 a.m. (CST) 
on October 14, 2004, until 6 p.m. (CST) on April 14, 2005.
    (d) Periods of Enforcement. This rule will only be enforced when a 
cruise ship is transiting the Mobile Ship Channel shoreward of the 
Mobile Sea Buoy, while transiting in the Port of Mobile, or while 
moored in the Port of Mobile.
    (e) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into a security zone is prohibited 
unless authorized by the Captain of the Port Mobile or a designated 
representative.
    (2) While a cruise ship is transiting on the Mobile Ship Channel 
shoreward of the Mobile Sea Buoy, and while transiting in the Port of 
Mobile, all persons and vessels are prohibited from entering within 100 
yards of a cruise ship.
    (3) While a cruise ship is moored in the Port of Mobile, all 
persons and vessels are prohibited from entering within 25 yards of a 
cruise ship.
    (4) Persons or vessels that desire to enter into the security zone 
for the purpose of passing or overtaking a cruise ship that is in 
transit on the Mobile Ship Channel or in the Port of Mobile must 
contact the on-scene Coast Guard representative, request permission to 
conduct such action, and receive authorization from the on-scene Coast 
Guard representative prior to initiating such action. The on-scene 
Coast Guard representative may be contacted on VHF-FM channel 16.
    (5) All persons and vessels authorized to enter into this security 
zone shall obey any direction or order of the Captain of the Port or 
designated representative. The Captain of the Port Mobile may be 
contacted by telephone at (251) 441-5976. The on-scene Coast Guard 
representative may be contacted on VHF-FM channel 16.
    (6) All persons and vessels shall comply with the instructions of 
the Captain of the Port Mobile 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: October 15, 2004.
Gary T. Croot,
Commander, U.S. Coast Guard, Captain of the Port Mobile, Acting.
[FR Doc. 04-25129 Filed 11-10-04; 8:45 am]
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