[Federal Register Volume 74, Number 225 (Tuesday, November 24, 2009)]
[Proposed Rules]
[Pages 61305-61308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28185]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0501]
RIN 1625-AA87


Security Zones; Brazos River, Freeport, TX

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish four permanent security 
zones in the Brazos River in Freeport, Texas. This security zone is 
needed to protect vessels, waterfront facilities, and surrounding areas 
from destruction, loss, or injury caused by terrorism, sabotage, 
subversive acts, accidents, or incidents of a similar nature. Entry 
into this zone will be prohibited except by permission of the Captain 
of the Port Houston-Galveston.

DATES: Comments and related material must reach the Coast Guard on or 
before December 24, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0501 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: Lieutenant junior grade Margaret 
Brown, Sector Houston-Galveston, telephone (713) 678-9001, 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:

[[Page 61306]]

Request for Comments

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-2009-0501], 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. 
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[frac12] 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 
proposed 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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2009-0501'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' 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 plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting 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 four 
permanent security zones within the port of Freeport, TX.
    These zones would 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. The zones being proposed are in areas with a high 
concentration of commercial facilities that are considered critical to 
national security.
    All vessels not exempted under Sec.  165.814(c) desiring to enter 
this zone would be required to obtain express permission from the 
Captain of the Port Houston-Galveston or his designated representative 
prior to entry. This proposed rule is not designed to restrict access 
to vessels engaged, or assisting in commerce with waterfront facilities 
within the security zones, vessels operated by port authorities, 
vessels operated by waterfront facilities within the security zones, 
and vessels operated by federal, state, county or municipal agencies. 
By limiting access to this area the Coast Guard would reduce potential 
methods of attack on vessels, waterfront facilities, and adjacent 
population centers located within the zones.

Discussion of Proposed Rule

    The Captain of the Port Houston-Galveston is proposing four 
permanent security zones in the waters adjacent to the Dow Chemical 
Facility in Freeport, Texas. All vessels not exempted under this rule 
would be prohibited from entering the security zone unless authorized 
by the Captain of the Port Houston-Galveston or his designated 
representative. In Houston, vessels can contact the Captain of the Port 
Houston-Galveston 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 Captain of the 
Port Houston-Galveston through Marine Safety Unit Galveston, by 
telephone at (409) 978-2700, or by facsimile at (409) 978-2671.
    The security zones are as follows:
    (i) The Dow Barge Canal, containing all waters of the Dow Barge 
Canal north of a line drawn between 28[deg]56.81' N/095[deg]18.33' W 
and 28[deg]56.63' N/095[deg]18.54' W (NAD 1983). This zone increases 
the size of the established security zone to include the interior part 
of the Dow Barge Canal.
    (ii) The Brazos Harbor, containing all waters west of a line drawn 
between 28[deg]56.45' N, 95[deg]20.00' W, and 28[deg]56.15' N, 
95[deg]20.00' W (NAD 1983) at its junction with the Old Brazos River. 
This security zone remains unchanged, but the position descriptions are 
changed from Degrees-Minutes-Seconds to Degrees-Minutes.Decimal Minutes 
for ease of use and maximum compatibility with GPS devices.
    (iii) The Dow Chemical plant, containing all waters of the Brazos 
Point Turning Basin within 100' of the north shore and bounded on the 
east by the longitude line drawn through 28[deg]56.58' N/095[deg]18.64' 
W and on the west by the longitude line drawn through 28[deg]56.64' N/
095[deg]19.13' W (NAD 1983). This is a new security zone surrounding 
the docks of the Dow Chemical Plant.
    (iv) The Seaway Teppco Facility, containing all waters of the 
Brazos Port Turning Basin bounded on the south by the shore, the north 
by the Federal Channel, on the east by the longitude line running 
through 28[deg]56.44' N, 95[deg]18.83' W and 28[deg]56.48' N 
095[deg]18.83' W and on the West by the longitude line running through 
28[deg]56.12' N, 95[deg]19.27' W and 28[deg]56.11' N, 095[deg]19.34' W 
(NAD 1983). This is a new security zone surrounding the docks of the 
Seaway Teppco Facility.
    (v) The Conoco Phillips Facility docks, containing all waters 
within 100 feet of a line drawn from a point on shore at approximate 
position 28[deg]55.96'

[[Page 61307]]

N, 095[deg]19.77' W east to a point on shore at approximate position 
28[deg]56.19' N, 095[deg]20.07' W (NAD 1983). This is a new security 
zone surrounding the docks of the Conoco Phillips facility.

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 is unnecessary. 
The basis of this finding is that the security zones are not part of 
the Federal Channel. It does not impede commercial traffic to, from, or 
within the Port of Freeport. Recreational and commercial fishing vessel 
traffic will be able to transit the Brazos River within the Federal 
Channel.

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: This 
proposed rule would not interfere with any commercial vessel traffic 
within the Old Brazos River.
    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 (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 junior grade Margaret 
Brown at (713) 678-9001. 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 Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969

[[Page 61308]]

(NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary 
determination that this action is not likely to have a significant 
effect on the human environment. A preliminary ``Environmental Analysis 
Check List'' supporting this preliminary determination is available in 
the docket where indicated under ADDRESSES. The proposed rule involves 
establishing security zones and is excluded under paragraph 34(g) of 
the Commandant Instruction. 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. Revise Sec.  165.814(a)(5) to read as follows:


Sec.  165.814  Security Zones; Captain of the Port Houston-Galveston 
Zone.

    (a) * * * * *
    (5) Freeport, Texas. (i) The Dow Barge Canal, containing all waters 
of the Dow Barge Canal north of a line drawn between 28[deg]56.81' N/
095[deg]18.33' W and 28[deg]56.63' N/095[deg]18.54' W (NAD 1983).
    (ii) The Brazos Harbor, containing all waters west of a line drawn 
between 28[deg]56.45' N, 95[deg]20.00' W, and 28[deg]56.15' N, 
95[deg]20.00' W (NAD 1983) at its junction with the Old Brazos River.
    (iii) The Dow Chemical plant, containing all waters of the Brazos 
Point Turning Basin within 100' of the north shore and bounded on the 
east by the longitude line drawn through 28[deg]56.58' N/095[deg]18.64' 
W and on the west by the longitude line drawn through 28[deg]56.64' N/
095[deg]19.13' W (NAD 1983).
    (iv) The Seaway Teppco Facility, containing all waters of the 
Brazos Port Turning Basin bounded on the south by the shore, the north 
by the Federal Channel, on the east by the longitude line running 
through 28[deg]56.44' N, 95[deg]18.83' W and 28[deg]56.48' N 
095[deg]18.83' W and on the West by the longitude line running through 
28[deg]56.12' N, 95[deg]19.27' W and 28[deg]56.11' N, 095[deg]19.34' W 
(NAD 1983).
    (v) The Conoco Phillips Facility docks, containing all waters 
within 100' of a line drawn from a point on shore at Latitude 
28[deg]55.96' N, Longitude 095[deg]19.77' W, extending west to a point 
on shore at Latitude 28[deg]56.19' N, Longitude 095[deg]20.07' W (NAD 
1983).

    Dated: September 29, 2009.
Marcus E. Woodring,
Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.
[FR Doc. E9-28185 Filed 11-23-09; 8:45 am]
BILLING CODE 4910-15-P