[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Rules and Regulations]
[Pages 39176-39178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13384]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Corpus Christi-04-006]
RIN 1625-AA87


Security Zones; Port of Port Lavaca-Point Comfort, Point Comfort, 
TX and Port of Corpus Christi Inner Harbor, Corpus Christi, TX

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is removing an established security zone in 
the Port of Port Lavaca-Point Comfort. Under the Maritime 
Transportation Security Act of 2002, owners or operators of local 
facilities are required to take specific action to improve facility 
security. As such, a security zone around local facilities will no 
longer be necessary under normal conditions. This final rule removes an 
established security zone.

DATES: This rule is effective on August 8, 2005.

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 Corpus Christi 04-006], and are available for 
inspection or copying at Sector Corpus Christi Prevention Department, 
555 N. Carancahua, Suite 500, Corpus Christi, TX 78478, between 7:30 
a.m. 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ensign John Oscar, Marine Safety 
Office Corpus Christi, at (361) 888-3162, ext. 534.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 25, 2005, the Coast Guard published a Notice of 
Proposed Rule Making and request for comments entitled ``Security 
Zones; Port of Port Lavaca-Point Comfort, TX and Port of Corpus Christi 
Inner Harbor, Corpus Christi, TX'' in the Federal Register (70 FR 
9263). As of March 28, 2005, we have received five written comments on 
that Notice of Proposed Rulemaking. No public meeting was requested so 
one was not held.
    As indicated in our ``Discussion of Comments and Changes'' section 
below, we have considered these comments in this final rule.

Discussion of Comments and Changes

    As of March 28, 2005, we received five written comments on the 
NPRM. These comments focused generally on one concern, which is the 
increase in maritime security risk due to commercial and recreational 
boating. Each section of this concern is discussed in more detail in 
the following paragraphs.
    Increased Maritime Security Risk. All five comments express concern 
regarding the increase in maritime security risk that would accompany 
the removal of the Port of Port Lavaca-Point Comfort Security Zone. 
Each comment states that the Port of Port Lavaca-Point Comfort has 
several shipping receiving and storage terminals for a variety of 
liquid chemicals, and it also has many foreign flagged vessels arriving 
and departing the port every day. Further, the comments state that the 
prohibition of commercial and recreational vessels in the established 
security zone has provided a much-needed additional tier of security 
protection for these terminals, as well as the vessel and cargo users. 
These comments state that the removal of the established security zone 
would create an increased maritime security risk for the port and its 
users.
    To address these comments, the Coast Guard's position regarding the 
following issues of waterfront facility security, foreign flagged 
vessel security, and commercial and recreational vessel security in the 
Port of Port Lavaca-Point Comfort will be explained separately. 
Facility Security. Under the authority of the Maritime Transportation 
Security Act (MTSA) of 2002, the Coast Guard published a final rule on 
October 22, 2003, entitled ``Facility Security'' in the Federal 
Register (68 FR 60515) that established 33 CFR part 105. That final 
rule became effective November 21, 2003, and provides security measures 
for certain facilities, including those facilities that exist on 
waterways in the Port of Port Lavaca-Point Comfort area. Section 
105.200 of 33 CFR requires owners or operators of these facilities to 
designate security officers for facilities, develop security plans 
based on security assessments and surveys, implement security measures 
specific to the facility's operations, and comply with Maritime 
Security Levels. Under 33 CFR 105.115, the owners or operators of these 
facilities must have submitted to the Captain of the Port, by December 
31, 2003, a Facility Security Plan as described in Subpart D of 33 CFR 
105, or if intending to operate under an approved Alternative Security 
Program as described in 33 CFR 101.130, a letter signed by the facility 
owner or operator stating which approved Alternative Security Program 
the owner or operator intends to use. Section 105.115 of 33 CFR part 
105 also requires facility owners or operators to be in compliance with 
33 CFR part 105 on or before July 1, 2004.
    Only a small number of waterfront facilities exist within the area 
protected by the security zone. Each of these facilities submitted a 
comprehensive facility security plan (FSP), which has been thoroughly 
reviewed and approved by the Coast Guard. Additionally, each facility 
was examined for compliance with their FSP within the last twelve 
months. All facilities were found to be in full compliance with their 
FSP. Additionally, facilities subject to the MTSA must have the 
capability to continuously monitor, among other things, the facility 
and its approaches on land and water, and vessels at the facility and 
areas surrounding the vessels.
    Vessel Security. Each foreign flagged vessel greater than 300 gross 
tons that intends to enter the Port of Port Lavaca-Point Comfort must 
submit a notice of arrival to the Coast Guard through the National 
Vessel Movement Center in accordance with 33 CFR part 160. As part of 
this notification process, detailed information regarding the times of 
arrival and departure, on board cargo, crew, last five ports visited 
and other pertinent information must be supplied in advance of the 
vessel's arrival. MSO Corpus Christi processes this arrival 
information, and using standard Coast Guard criteria, determines if a 
vessel merits special consideration before being allowed entry into the 
United States. Such vessels are characterized as high interest vessels 
(HIV). Those HIVs are boarded offshore to verify the integrity of the 
vessel's security in order to ensure the protection of both the vessel 
and the port. In all cases, no vessel is allowed entry into any port 
unless all security concerns have been adequately addressed.
    The Coast Guard calculated that for the past 5 years the average 
number of vessels arriving each year was 330. Between April 1, 2004, 
and March 31, 2005, a total of 364 vessel arrivals occurred. Of that, 
only 20 vessels, or 5.5

[[Page 39177]]

percent, were designated as a HIV. In accordance with current policy, 
the Coast Guard has boarded all HIVs that entered the Port of Port 
Lavaca-Point Comfort.
    In order to address ship specific security, all foreign flagged 
vessels exceeding 500 gross tons are subject to International Ship and 
Port Facility Security (ISPS) Code and must posses an International 
Ship Security Certificate (ISSC). A vessel that possesses a valid ISSC 
has been found to have an acceptable level of security as determined by 
the issuing authority. For every vessel that indicates it holds a valid 
ISSC, an initial verification exam is conducted by the Coast Guard 
before allowing the vessel into the United States. Furthermore, the 
Coast Guard verifies ISPS compliance through regular port state control 
examinations, which are conducted on foreign flagged vessels while in 
port. Vessels found not in compliance are either expelled from port or 
detained until satisfactory corrections have been made.
    Commercial and Recreational Vessel Security. Aside from commercial 
deep draft shipping, commercial towing vessels, and barges that have 
legitimate business at the facilities in the existing security zone, 
the only commercial vessels of concern would be fishing vessels. 
However, in April of 1988, the Texas Department of Health (TDH) issued 
a ``closure order'' for an area that includes the existing security 
zone that prohibits the taking of finfish and crabs for consumption. 
This order is still effective. As such, commercial and recreational 
fishing vessels should not be present in the area of the facilities 
even after the security zone is removed.
    In order to maintain the security of the port of Port Lavaca-Point 
Comfort, and to verify the intentions of vessels in the port area, the 
Coast Guard conducts regular, highly visible waterborne patrols using 
both Coast Guard and Coast Guard Auxiliary vessels, random shore side 
patrols to ensure facility security is executed properly, and over-
flights using Coast Guard aircraft. State and local authorities 
including Texas Parks and Wildlife, Jackson County Sheriff's Office, 
and the Texas General Land Office conduct other patrols. These agencies 
maintain close contact with the Coast Guard while on patrol.
    Summary of response to comments. The Coast Guard contends that 
security measures implemented at facilities and on vessels as required 
by the MTSA and ISPS Code, the Coast Guard's efforts to screen and 
board arriving foreign flagged vessels, and efforts to conduct highly 
visible patrols of the Port Lavaca-Point Comfort area, provide a 
substantial layered defense mechanism against security threats. The 
Coast Guard finds that removing the established security zone in the 
Port Lavaca-Point Comfort area will not result in an unacceptable 
increase in the level of maritime security risk. No changes from the 
proposed rule have been made except for grammatical changes in 
paragraphs (a), (b)(1), and (b)(2), of 33 CFR 165.809 to change 
references from security zones to security zone.

Background and Purpose

    On October 17, 2002, the Coast Guard published a final rule 
entitled ``Security Zones; Port of Port Lavaca-Point Comfort, Point 
Comfort, TX and Port of Corpus Christi Inner Harbor, Corpus Christi, 
TX'', in the Federal Register (67 FR 64046). That final rule 
established two security zones that appear in 33 CFR 165.809. The first 
security zone is entitled ``Port of Port Lavaca-Point Comfort'' and 
included all waters between the Dredge Island Bridge at 28[deg]39'30'' 
N, 96[deg]34'20'' W and a line drawn between points 28[deg]38'10'' N, 
96[deg]33'15'' W and 28[deg]38'10'' N, 96[deg]34'45'' W, including the 
Point Comfort turning basin and adjacent Alcoa Channel. The second 
security zone is entitled ``Port of Corpus Christi Inner Harbor'' and 
included all waters of the Corpus Christi Inner Harbor from the Inner 
Harbor Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin.
    As a result of the Maritime Transportation Security Act, the 
International Ship and Port Facility Security Code, and current 
security actions performed by the Coast Guard, state and local 
authorities, the Coast Guard finds that the existing security zone for 
the Port of Port Lavaca-Point Comfort is no longer necessary under 
normal conditions.

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.
    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 as this rule removes a portion of a regulation 
that is no longer necessary.

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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered 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

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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 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 will not affect 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 
proposed rule is not an economically significant rule and will 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 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 M16475.1D, 
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 NEPA.
    Under figure 2-1, paragraph (34)(g), of the Instruction, an 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' are not required for this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. In Sec.  165.809, revise paragraphs (a), (b)(1), and (b)(2) to read 
as follows:


Sec.  165.809  Security Zone; Port of Corpus Christi Inner Harbor, 
Corpus Christi, TX.

    (a) Location. The following area is designated as a security zone: 
all waters of the Corpus Christi Inner Harbor from the Inner Harbor 
Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin.
    (b) Regulations. (1) No recreational vessels, passenger vessels, or 
commercial fishing vessels may enter the security zone unless 
specifically authorized by the Captain of the Port Corpus Christi or a 
designated representative.
    (2) Recreational vessels, passenger vessels and commercial fishing 
vessels requiring entry into the security zone must contact the Captain 
of the Port Corpus Christi or a designated representative. The Captain 
of the Port may be contacted via VHF Channel 16 or via telephone at 
(361) 888-3162 to seek permission to transit the area. If permission is 
granted, all persons and vessels must comply with the instructions of 
the Captain of the Port, Corpus Christi or a designated representative.
* * * * *

    Dated: June 9, 2005.
J. H. Korn,
Captain, U.S. Coast Guard, Captain of the Port Corpus Christi.
[FR Doc. 05-13384 Filed 7-6-05; 8:45 am]
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