[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Proposed Rules]
[Pages 19923-19926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9990]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0125]
RIN 1625-AA87


Security Zone; Freeport Channel Entrance, Freeport, TX

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish moving security zones 
for certain vessels, for which the Captain of the Port, Houston-
Galveston deems enhanced security measures necessary on a case-by-case 
basis. These moving security zones would extend 1,000 yards ahead and 
astern and 500 yards on each side of certain vessels, which would 
display the international signal flag or pennant number five to signal 
a security zone is established around the vessel. The moving security 
zone may commence at any point after certain vessels bound for the Port 
of Freeport enter the U.S. territorial waters (12 nautical miles) in 
the Captain of the Port (COTP) Houston-Galveston zone. These security 
zones are needed to safeguard the vessels, the public, and the 
surrounding area from sabotage or other subversive acts, accidents, or 
other events of a similar nature. Unless exempted under this rule, 
entry into or movement within these security zones would be prohibited 
without permission from the COTP Houston-Galveston.

DATES: Comments and related material must reach the Coast Guard on or 
before June 1, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-0125 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) 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.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (5) To avoid duplication, please use only one of these four 
methods. See the ``Public Participation and Request for Comments'' 
portion of the SUPPLEMENTARY INFORMATION section below for instructions 
on submitting comments.

FOR FURTHER INFORMATION CONTACT: Lieutenant Cliff Harder, Marine Safety 
Unit Galveston, telephone (409) 978-2700, extension 2705, or e-mail 
[email protected]. 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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0125), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand-deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2008-0124'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand

[[Page 19924]]

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 
comments 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 
and may change the rule based on your comments.

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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-0124 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

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 using one of the four methods specified 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

    Heightened awareness of potential terrorist acts requires enhanced 
security of our ports, harbors, and vessels; to enhance security, the 
Captain of the Port Houston-Galveston proposes to establish moving 
security zones around certain vessels. This would make permanent a 
temporary final rule that was effective from January 15, 2009, to April 
30, 2009. See 74 FR 13343.
    This proposed rule would establish distinct moving security zones 
that may commence at any point after certain vessels bound for the Port 
of Freeport enter the 12 nautical mile U.S. territorial waters in the 
Captain of the Port Houston-Galveston zone. These security zones would 
be established to protect waterfront facilities, persons, and vessels 
from subversive or terrorist acts. Vessels operating within the Captain 
of the Port Houston-Galveston Zone are potential targets of terrorist 
attacks, or potential launch platforms for terrorist attacks on other 
vessels, waterfront facilities, and adjacent population centers.
    Due to the potential for terrorist attacks, this proposed rule 
would allow the Captain of the Port to create moving security zones 
around certain vessels as deemed necessary, on a case-by-case basis. 
All vessels around which a security zone is deemed necessary would 
display the international signal flag or pennant number five, to signal 
that there is a security zone established around the vessel. By 
limiting access to these areas, the Coast Guard is reducing potential 
methods of attack on these vessels, and potential use of the vessels to 
launch attacks on waterfront facilities and adjacent population centers 
located within the Captain of the Port Houston-Galveston zone. Vessels 
having a need to enter these security zones must obtain express 
permission from the Captain of the Port Houston-Galveston or his 
designated representative prior to entry.

Discussion of Proposed Rule

    The Coast Guard proposes to establish moving security zones for 
certain vessels, for which the Captain of the Port Houston-Galveston 
deems enhanced security measures necessary on a case-by-case basis. 
These moving security zones would be activated for certain vessels 
within the Captain of the Port Houston-Galveston zone commencing at 
U.S. territorial waters through the Freeport Entrance Channel, 
extending from the surface to the sea floor. These moving security 
zones would be established as follows: 1000 yards ahead and astern and 
500 yards on each side of certain vessels, which would display the 
international signal flag or pennant number five, while in transit. 
Unless exempted under this rule, these moving security zones would 
prohibit entry into or movement within this portion of the Captain of 
the Port Houston-Galveston zone without Captain of the Port 
authorization. These security zones are needed to safeguard the 
vessels, the public, and the surrounding area from sabotage or other 
subversive acts, accidents, or other events of a similar nature.
    All vessels not exempted under this rule would be prohibited from 
entering these security zones unless authorized by the Captain of the 
Port Houston-Galveston or his designated representative. In Houston, 
vessels can contact the COTP through Vessel Traffic Service Houston/
Galveston on VHF Channel 5A, by telephone at (713) 671-5103, or by 
facsimile at (713) 671-5159. In Freeport, vessels can contact the COTP 
through Marine Safety Unit Galveston, by telephone at (409) 978-2700, 
or by facsimile at (409) 978-2671.

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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. The basis of 
this finding is that the duration of the proposed security zones is 
limited in nature and would not create undue delay to vessel traffic in 
and around the Port of Freeport.

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 not have a significant economic impact on 
a substantial number of small entities for the following reason: The 
duration of the proposed security zones is limited in nature and would 
not create undue delay to vessel traffic in and around the Port of 
Freeport.
    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

[[Page 19925]]

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 (Pub. L. 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 Cliff Harder at (409) 
978-2700, extension 2705. 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 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 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 adopted by voluntary consensus 
standards bodies. This proposed rule would not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 0023.1 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this preliminary 
determination is available in the docket where indicated under 
ADDRESSES. This proposed rule involves establishing moving security 
zones around certain vessels in the Caption of the Port Houston-
Galveston zone. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this proposed 
rule.

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, 3306, 
3703; 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 new Sec.  165.818 to read as follows:


Sec.  165.818  Moving security zones, for certain vessels in Freeport 
Entrance Channel, Freeport, Texas.

    (a) Location. The following areas are security zones: All waters 
within the Captain of the Port Houston-Galveston Zone commencing at 
U.S. territorial waters through the Freeport Entrance Channel, from 
surface to bottom, one thousand (1000) yards ahead and astern and five 
hundred (500) yards on each side of any vessel within the 12 nautical 
mile U.S. Territorial Waters in the Captain of the Port Houston-
Galveston zone that displays the international signal flag or pennant 
number five.
    (b) Regulations. (1) Entry into or remaining in the zones described 
in paragraph (a) of this section is prohibited for all vessels except:

[[Page 19926]]

    (i) Moored vessels or vessels anchored in a designated anchorage 
area. A moored or an anchored vessel in a security zone described in 
paragraph (a) of this section must remain moored or anchored unless it 
obtains permission from the Captain of the Port to do otherwise.
    (ii) Commercial vessels operating at the waterfront facilities 
within zone described in paragraph (a) of this section.
    (iii) Commercial vessel transiting directly to or from waterfront 
facilities within a security zone described in paragraph (a) of this 
section.
    (iv) Vessels providing direct operational/logistic support to 
commercial vessels within a security zone described in paragraph (a) of 
this section.
    (v) Vessels operated by the port authority or by facilities located 
within a security zone described in paragraph (a) of this section.
    (vi) Vessels operated by federal, state, county, or municipal 
agencies.
    (2) All persons and vessels within a security zone described in 
paragraph (a) of this section must 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.
    (3) To request permission as required by these regulations, contact 
the Sector Houston-Galveston Command Center by telephone at (713) 671-
5113. In Freeport, vessels should contact the Captain of the Port's 
designated on-scene representative for the moving security zone on VHF 
Channel 16, or by telephone at (979) 233-7551.
    (c) Informational broadcasts. The Captain of the Port Houston-
Galveston will inform the public when moving security zones have been 
established around vessels via Broadcast Notice to Mariners on VHF 
channel 16 and 13.
    (d) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

    Dated: February 18, 2009.
William J. Diehl,
Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.
[FR Doc. E9-9990 Filed 4-29-09; 8:45 am]
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