[Federal Register Volume 76, Number 144 (Wednesday, July 27, 2011)]
[Proposed Rules]
[Pages 44880-44883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19017]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0318]
RIN 1625-AA87


Security Zone; Escorted Vessels in Captain of the Port Ohio 
Valley Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to implement fixed and moving 
security zones around High Capacity Passenger Vessels (HCPVs) and 
vessels carrying Certain Dangerous Cargo (CDC) while they are being 
escorted in the navigable waters of the Captain of the Port (COTP), 
Sector Ohio Valley Zone. As used in this section, HCPVs are defined as 
any commercial vessel carrying 500 or more passengers and CDC is 
defined in 33 CFR 160.204. The proposed security zones would control 
the movement of vessels within 50 yards of a HCPV or vessel carrying a 
CDC. These security zones would mitigate potential terrorist acts and 
would enhance public and maritime safety and security.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 26, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0318 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.
    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: If you have questions on this proposed 
rule, call or e-mail LCDR Derek Schade, Sector Ohio Valley Response 
Department, Coast Guard; telephone 502-779-5413, 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-2011-0318), 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, 
click on the ``submit a comment'' box, which will

[[Page 44881]]

then become highlighted in blue. In the ``Document Type'' drop down 
menu select ``Proposed Rule'' and insert ``USCG-2011-0318'' in the 
``Keyword'' box. Click ``Search'' then click on the balloon shape in 
the ``Actions'' column. If you submit your comments by mail or hand 
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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2011-0318'' 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 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 a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one during the comment period. Please explain why you 
believe a public meeting would be beneficial. If we determine that one 
would aid this rulemaking, we will extend the comment period and hold 
one at a time and place announced by a later notice in the Federal 
Register.
    For information on facilities or services for individuals with 
disabilities or to request special assistance at a public meeting, 
contact LCDR Derek Schade at the telephone number or e-mail address 
indicated under the FOR FURTHER INFORMATION CONTACT section of this 
notice.

Basis 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, Ohio Valley proposes to establish security zones 
around certain vessels. 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.
    Due to the potential for terrorist attacks, this proposed rule 
would create fixed and moving security zones around HCPVs and vessels 
carrying CDCs while they are transiting under escort on the navigable 
waters within the COTP Ohio Valley zone. 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, Ohio Valley zone. Vessels having a need to 
enter these security zones must obtain permission from the Captain of 
the Port or his designated representative prior to entry.
    Terrorist attacks on September 11, 2001, inflicted catastrophic 
human casualties and property damage. These attacks highlighted 
terrorists' desire and ability to use multiple means in different 
geographic areas to successfully carry out their mission.
    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia, and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. The October 2002 attack on a tank vessel, MV LIMBURG, 
off the coast of Yemen and the prior attack on the USS COLE demonstrate 
the maritime terrorism threat. These attacks manifest a continuing 
threat to U.S. maritime assets as described in the President's finding 
in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 
2002) that the security of the U.S. is endangered by the September, 11, 
2001 attacks and that such disturbances continue to endanger the 
international relations of the United States. See also Continuation of 
the National Emergency with Respect to Certain Terrorist Attacks, (67 
FR 58317, September 13, 2002; and 75 FR 55661, September 13, 2010); 
Continuation of the National Emergency With Respect To Persons Who 
Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, 
September 20, 2002; and 75 FR 57159, September 20, 2010).
    The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised 
U.S. shipping interests to maintain a heightened state of alert against 
possible terrorist attacks. MARAD Advisory 02-07 was cancelled and 
replaced by MARAD Advisory 05-01, which advises operators of U.S. 
flagged vessels that hostile actions against merchant vessels are 
present and growing. Finally, in recent months, hostilities in 
Afghanistan and other areas have escalated, making it prudent for U.S. 
ports and waterways to be on a higher state of alert because the Al 
Qaeda organization and other similar organizations have declared an 
ongoing intention to conduct armed attacks on U.S. interests worldwide.
    Due to increased awareness that future terrorist attacks are 
possible, the Coast Guard, as lead Federal agency for maritime homeland 
security, has determined that the Captain of the Port must have the 
means to be aware of, detect, deter, intercept, and respond to 
asymmetric threats, acts of aggression, and attacks by terrorists on 
the American homeland while maintaining our freedoms and sustaining the 
flow of commerce. Subversive activity towards HCPVs and vessels 
carrying CDCs is of paramount concern to the Coast Guard. Therefore, in 
order to strengthen security and further control access, the COTP, 
Sector Ohio Valley has decided to implement a security zone around all 
HCPVs and vessels carrying CDCs that are being escorted within the COTP 
Ohio Valley zone, as described in 33 CFR 3.40-65.

Discussion of Proposed Rule

    The Coast Guard proposes to establish a 50-yard security zone 
around HCPVs and vessels carrying CDCs while they are being escorted in 
the Captain of the Port Ohio Valley zone, as defined in 33 CFR 3.40-65.
    This rule would establish security zones that control the movement 
of persons and other vessels from the surface to the bottom of the 
water in a 50-yard radius around escorted vessels. Vessels traveling 
within 50 yards of these escorted vessels would be required to slow to 
the minimum speed necessary to navigate safely. All vessels or persons 
would be prohibited from entering within a 25-yard radius around these 
escorted vessels without the permission from the COTP Sector Ohio 
Valley or his or her designated representative.

[[Page 44882]]

    For the purposes of this rule, a designated representative of the 
COTP Ohio Valley includes commissioned, warrant, or petty officers of 
the U.S. Coast Guard; or Federal, State, and local law enforcement 
officers designated by or assisting the COTP Ohio Valley.
    As used in this section, an escorted vessel is defined as a HCPV or 
vessel carrying CDC that is accompanied by one or more Coast Guard 
assets or other Federal, State, or local law enforcement assets clearly 
identified by lights, vessel markings, or with agency insignia.
    In all cases, the COTP would notify the maritime and general public 
by marine information broadcast of the periods during which individual 
security zones will be enforced.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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.
    This rule does not pose a significant regulatory impact. The 
limited geographic area impacted by the security zones would not 
restrict the movement or routine operation of commercial or 
recreational vessels through the waterways within the COTP Ohio Valley 
zone.

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 might be small entities: The owners or 
operators of vessels intending to transit within 50 yards of escorted 
vessels. This rule would not have a significant impact on a substantial 
number of small entities because the security zones are limited in 
size, in most cases leaving ample space for vessels to navigate around 
them. The zones would not significantly impact commercial and passenger 
vessel traffic patterns, and mariners would be notified of the zones 
via broadcast notice to mariners. Where such space is not available and 
security conditions permit, the COTP would attempt to provide 
flexibility for individual vessels to transit through the zones as 
needed.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment using one 
of the four methods specified under 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 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 proposed 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 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would not cause 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''

[[Page 44883]]

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 does 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 023-01 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 that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves establishing security zones around escorted vessels and 
would not have a significant environmental impact. Therefore, this rule 
is categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction, from further environmental documentation. The categorical 
exclusion determination is also available in the docket where indicated 
under ADDRESSES. 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. 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 Sec.  165.318 to read as follows:


Sec.  165.318  Security Zone; Captain of the Port Ohio Valley Zone.

    (a) Definitions. The following definitions apply to this section:
    Captain of the Port or COTP means the same as described in 33 CFR 
3.01-1.
    Designated representative of the Captain of the Port means any U.S. 
Coast Guard commissioned, warrant, and petty officers; and Federal, 
State, and local law enforcement officers designated by or assisting 
the COTP in the enforcement of the security zone.
    High Capacity Passenger Vessel or HCPV means as any commercial 
vessel carrying 500 or more passengers.
    Certain Dangerous Cargo or CDC means the same as defined in 33 CFR 
160.
    Escorted vessel means a HCPV or vessel carrying a CDC that is 
accompanied by one or more U.S. Coast Guard assets or other Federal, 
State, or local law enforcement agency assets clearly identifiable by 
lights, vessel markings, or with agency insignia.
    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) Location. All navigable waters, as defined within Captain of 
the Port, Sector Ohio Valley zone, 33 CFR 3.40-65, within 50 yards 
around an escorted vessel while transiting, moored, or anchored.
    (c) Periods of enforcement. The COTP will enforce this section 
during escorts of HCPVs and vessels carrying a CDC. The COTP may enlist 
the aid and cooperation of any Federal, State, county, or municipal law 
enforcement agency to assist in the enforcement of this regulation. The 
COTP Ohio Valley may notify the maritime and general public by 
broadcast notices to mariners, local notices to mariners, or marine 
safety information broadcasts of the periods during which individual 
security zones have been activated.
    (d) Regulations. (1) Unless otherwise specified in this section, 
the general regulations for security zones contained in Sec.  165.33 of 
this part apply to this section.
    (2) No vessel may approach within 50-yards of an escorted vessel 
within the Captain of the Port, Sector Ohio Valley zone, unless 
traveling at the minimum safe speed necessary to navigate safely.
    (3) No vessel or person may approach within 25 yards of an escorted 
vessel within the Captain of the Port Ohio Valley zone, unless 
authorized by the COTP Ohio Valley or his or her designated 
representative.
    (4) Persons desiring to transit the area of the security zone 
within 25 yards of an escorted vessel must contact the COTP Ohio Valley 
on VHF-FM channel 16 (156.8 MHz) or telephone number 502-779-5300 to 
seek permission. 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.

    Dated: July 6, 2011.
L.W. Hewett,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2011-19017 Filed 7-26-11; 8:45 am]
BILLING CODE 9110-04-P