[Federal Register Volume 70, Number 5 (Friday, January 7, 2005)]
[Proposed Rules]
[Pages 1400-1403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-379]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Mobile-04-057]
RIN 1625-AA87


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish permanent 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 
proposed security zones are needed to ensure the safety and security of 
these vessels. Entry into these proposed zones would be prohibited 
unless specifically authorized by the Captain of the Port Mobile or a 
designated representative.

[[Page 1401]]


DATES: Comments and related material must reach the Coast Guard on or 
before February 7, 2005.

ADDRESSES: You may mail comments and related material to Marine Safety 
Office Mobile, Brookley Complex, Bldg 102, South Broad Street, Mobile, 
AL 36615-1390, Attn: LT Maurice York. Marine Safety Office Mobile 
maintains the public docket for this rulemaking. Comments and material 
received from the public, as well as documents indicated in this 
preamble as being available in the docket, will become part of this 
docket and will be 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:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [COTP 
Mobile 04-057], indicate the specific section of this document to which 
each comment applies, and give the reason for each comment. Please 
submit all comments and related material in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know they reached us, 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 proposed rule in 
view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Marine Safety Office Mobile 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.

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, 2004) (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.
    On November 12, 2004, the Coast Guard published a temporary final 
rule entitled ``Security Zone; Port of Mobile, Mobile Ship Channel, 
Mobile, AL'' (69 FR 65373). This temporary final rule established 
security zones around cruise ships when transiting the Mobile Ship 
Channel and Port of Mobile, as well as when moored in the Port of 
Mobile. This temporary final rule will expire at 6 p.m. on April 14, 
2005. However, due to the increased security concerns surrounding the 
transit of cruise ships, the Captain of the Port Mobile is proposing to 
establish permanent security zones 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 Proposed Rule

    The Captain of the Port Mobile proposes to establish permanent 
security zones for the Port of Mobile and Mobile Ship Channel. This 
proposed rule would establish security zones that prohibit movement 
within 25 yards of all cruise ships while moored in the Port of Mobile, 
and would prohibit 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 would 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 would also exist during 
each cruise ship's transit outbound of the Port of Mobile and the 
Mobile Ship Channel. Enforcement of the security zones would cease once 
the cruise ship passes the Mobile Sea Buoy on its outbound voyage.
    These proposed security zones are needed to protect the safety of 
life, property, and the environment in the area. All vessels would be 
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 proposed 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 would be required to 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 would 
inform the public through broadcast notice to mariners of the 
enforcement periods for the security zone.

Regulatory Evaluation

    This proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    These proposed security zones would 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 would be 
reduced to 25 yards. While the cruise ship is moored, other vessels 
would be able to safely transit around this zone provided they approach 
no

[[Page 1402]]

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 this security zone 
would 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which may be small entities: the owners or operators of vessels 
intending to transit the waters of the Port of Mobile or the Mobile 
Ship Channel while cruise ships are shoreward of Mobile Sea Buoy.
    This proposed rule zone would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (1) This proposed rule would only be enforced while cruise 
ships are shoreward of the Mobile Sea Buoy; (2) Once a cruise ship is 
moored in the Port of Mobile, the security zone would be reduced to 25 
yards and other vessels would be able to safely transit around this 
zone provided they approach no closer than 25 yards; (3) The Captain of 
the Port Mobile may permit vessels to transit through the security zone 
for the purpose of passing or overtaking a transiting cruise ship if 
permission is sought and obtained from the on-scene Coast Guard 
representative prior to initiating such action. If you think that your 
business, organization, or governmental jurisdiction qualifies as a 
small entity and that this proposed rule would have a significant 
economic impact on it, please submit a comment (see ADDRESSES) 
explaining why you think it qualifies and how and to what degree this 
rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed 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 (LT) Maurice York, 
Operations Department, Marine Safety Office Mobile, at (251) 441-5940. 
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 proposed 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 proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed 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 proposed 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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

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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 proposed 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 draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.
    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

    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.

    2. Add Sec.  165.835 to read as follows:


Sec.  165.835  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]07'50'' 
N, 88[deg]04'12'' W; NAD 83), and
    (2) Within 25 yards of a cruise ship that is moored shoreward of 
the Mobile Sea Buoy.
    (c) 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. The Captain of the Port Mobile or a 
designated representative would inform the public through broadcast 
notice to mariners of the enforcement periods for the security zone.
    (d) Regulations. (1) Under Sec.  165.33, 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 must 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 must comply with the instructions of 
the Captain of the Port Mobile and designated on-scene U.S. Coast Guard 
patrol personnel. On-scene Coast Guard patrol personnel include 
commissioned, warrant, and petty officers of the U.S. Coast Guard.

    Dated: December 6, 2004.
Steven D. Hardy,
Captain, U.S. Coast Guard, Captain of the Port Mobile.
[FR Doc. 05-379 Filed 1-6-05; 8:45 am]
BILLING CODE 4910-15-P