[Federal Register Volume 73, Number 103 (Wednesday, May 28, 2008)]
[Proposed Rules]
[Pages 30560-30563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11863]



[[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

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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.

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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.

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    (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