[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Rules and Regulations]
[Pages 6013-6016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2674]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1063]
RIN 1625-AA87


Moving Security Zone Around Escorted Vessels On the Lower 
Mississippi River Between Mile Marker 90.0 Above Head of Passes to Mile 
Marker 110.0 Above Head of Passes

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Captain of the Port of New Orleans (COTP New Orleans) has 
established moving security zones on the Mississippi River, from mile 
marker 90 through mile marker 110, extending 300 yards on all sides of 
vessels being escorted 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. This 
moving security zone regulation is necessary to protect vessels deemed 
to be in need of escort protection by the COTP New Orleans for security 
reasons. No person or vessel is permitted to enter or transit the 
security zones created by this temporary rule without permission of the 
COTP New Orleans.

DATES: This rule is effective from January 1, 2012, through March 31, 
2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-1063 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-1063 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Lieutenant Commander (LCDR) Kenneth 
Blair, Sector New Orleans, Coast Guard; telephone 504-365-2392, email 
[email protected]. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

[[Page 6014]]

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule. Certain vessels qualifying as vessels 
requiring security escorts will transit through the COTP New Orleans 
area of responsibility. Based on risk evaluations completed, and 
information gathered from November 26, 2011, to December 26, 2011, and 
after evaluating the security needs for escorted vessels, the Coast 
Guard determined that a security zone regulation is required, beginning 
January 1, 2012. This temporary final rule establishing moving security 
zones is needed to protect escorted vessels and personnel from 
destruction, loss, or injury from sabotage or other subversive acts, 
accidents, or other causes of a similar nature. The NPRM process would 
unnecessarily delay the effective dates and would be contrary to public 
interest by delaying or foregoing the necessary protections required 
for the escorted vessels and their personnel. The moving security zones 
established by this rulemaking are temporary. A rulemaking proposing to 
establish moving security zones on a permanent basis is anticipated; 
that rulemaking would provide notice and a comment period.
    For these same reasons, 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. This temporary final 
rule establishing moving security zones is needed to protect escorted 
vessels and personnel from destruction, loss, or injury from sabotage 
or other subversive acts, accidents, or other causes of a similar 
nature. A 30-day delayed-effective-date period would be contrary to the 
public interest because it would delay necessary protections required 
for these escorted vessels and personnel.

Basis and Purpose

    Certain vessels, including high capacity passenger vessels, vessels 
carrying certain dangerous cargoes as defined in 33 CFR part 160, tank 
vessels constructed to carry oil or hazardous materials in bulk, and 
vessels carrying liquefied hazardous gas as defined in 33 CFR part 127 
have been deemed by the COTP New Orleans to require escort protection 
during transit between mile marker 90.0 to mile marker 110.0 of the 
Lower Mississippi River. This temporary rule establishes moving 
security zones to assist and support the Coast Guard with the required 
vessel escorts between mile marker 90.0 to mile marker 110.0. These 
moving security zones extend 300 yards in all directions from the 
escorted vessels. Vessels will not be allowed to transit through these 
moving security zones without the permission of the Captain of the 
Port, New Orleans or the on-scene Coast Guard or enforcement agency 
asset. The moving security zones established by this temporary rule are 
necessary to protect escorted vessels and personnel from destruction, 
loss or injury from sabotage or other subversive acts, accidents or 
other causes of a similar nature.

Discussion of Rule

    Under the authority of the Magnuson Act, 50 U.S.C. 191-195, and 33 
CFR part 6, the Coast Guard has established a moving security zone 
regulation to protect escorted vessels and personnel. While this 
temporary rule is effective, vessels are prohibited from transiting 
within 300 yards in all directions from each escorted vessel. 
Deviations from this rule may be requested from the Captain of the Port 
New Orleans through the on-scene Coast Guard or enforcement agency 
asset, via VHF Ch. 67 or the Coast Guard Vessel Traffic Center at (504) 
365-2230. Notice of the moving security zones established by this 
temporary rule will be made through broadcast notices to mariners.
    You may request permission of the COTP New Orleans or the on-scene 
Coast Guard or enforcement agency asset to enter the security zone. If 
permitted to enter the security zone, a vessel must proceed at the 
minimum safe speed and must comply with the order of the COTP New 
Orleans or the on-scene asset. No vessel may enter the inner 50-yard 
portion of the security zone closest to the vessel being escorted. The 
COTP New Orleans will inform the public of the existence or status of 
the security zones around escorted vessels in the regulated area by 
Marine Safety Information Bulletins or 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.

Regulatory Analyses

    We developed this 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 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.
    Due to its duration and location the impacts of this rule on 
routine navigation are expected to be minimal.

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 will affect the following entities, some of which may be 
small entities: the owners or operators of vessels, intending to 
transit in the vicinity of mile marker 90.0 through mile marker 110.0 
of the Lower Mississippi River, extending 300 yards in all directions 
of an escorted vessel. This security zone regulation will not have 
significant impact on a substantial number of small entities because of 
its location and duration. If you are a small business entity and are 
significantly affected by this regulation please contact Lieutenant 
Commander (LCDR) Kenneth Blair, Sector New Orleans, at 504-365-2392, or 
email [email protected].

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

[[Page 6015]]

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 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 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 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 concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction.
    An environmental analysis checklist and a categorical exclusion 
determination will be made available and accessible in the docket as 
indicated in the ADDRESSES section.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record-
keeping requirements, Security measures, Waterways.

    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. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.06-1, 6.05-6 and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


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2. A new temporary Sec.  165.T08-040 is added to read as follows:


Sec.  165.T08-040  Moving Security Zone, Escorted Vessels

    (a) Location. The following areas are security zones: Navigable 
waters of the Lower Mississippi River, from mile marker 90.0 to mile 
marker 110.0, extending 300 yards in all directions of escorted 
vessels. Escorted vessels will be escorted 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.
    (b) Effective period. This rule is effective from January 1, 2012, 
through March 31, 2012.
    (c) Regulation. (1) Under the general regulations in Sec.  165.33 
of this part, vessels are prohibited from entering or transiting the 
security zones described in paragraph (a) of this temporary section, 
Sec.  165.T08-040.
    (2) If granted permission to enter a security zone, a vessel must 
operate at the minimum speed necessary to maintain a safe course, 
unless required to maintain speed by the Navigation Rules, and shall 
proceed as directed by the Coast Guard. When within the security zone, 
no vessel or person is allowed within 50 yards of the escorted vessel 
unless authorized by the Coast Guard.

[[Page 6016]]

    (3) Persons or vessels requiring deviations from this rule must 
request permission from the Captain of the Port New Orleans through the 
on-scene Coast Guard or other agency asset, via VHF Ch. 67 or the Coast 
Guard Vessel Traffic Center at (504) 365-2230.
    (4) All persons and vessels granted permission to enter a security 
zone must comply with the instructions of the Captain of the Port New 
Orleans and designated personnel. Designated personnel include 
commissioned, warrant and petty officers of the U.S. Coast Guard, and 
local, state, and federal law enforcement officers on clearly 
identified law enforcement agency vessels.
    (d) Informational broadcasts. The Captain of the Port or a 
designated representative will inform the public through marine safety 
information bulletins or broadcast notices to mariners of this 
regulation.

    Dated: December 27, 2011.
J. J. Arenstam,
Captain, U.S. Coast Guard, Acting Captain of the Port New Orleans.
[FR Doc. 2012-2674 Filed 2-6-12; 8:45 am]
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