[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Rules and Regulations]
[Pages 6448-6452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02322]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number-USCG-2014-0995]
RIN 1625-AA87


Moving Security Zone; Escorted Vessels; MM 90.0-106.0, Lower 
Mississippi River; New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Coast Guard is establishing an interim rule providing for 
temporary moving security zones around vessels being escorted by one or 
more Coast Guard or other Federal, State, or local law enforcement 
assets, on the navigable waters of the Lower Mississippi River, New 
Orleans, LA. These temporary moving security zones are necessary for 
the safe transit and mooring of vessels requiring escort protection by 
the Coast Guard for security reasons as well as the safety and security 
of personnel and port facilities. Entry into, remaining in or 
transiting through these zones is prohibited for all vessels, mariners, 
and persons unless specifically authorized by the Captain of the Port 
New Orleans or a designated representative. The Coast Guard seeks 
comments on this interim rule before establishing a permanent final 
rule.

DATES: This rule is effective in the CFR on February 5, 2015 through 
July 1, 2015. This rule is effective with actual notice for purposes of 
enforcement on January 31, 2015. This rule will remain in effective 
through July 1, 2015. Comments and related material must be received by 
the Coast Guard on or before March 9, 2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2014-0995]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or email Commander Kelly Denning, Sector New Orleans, U.S. 
Coast Guard; telephone (504) 365-2392, email [email protected]. 
If you have questions on viewing or submitting material to the docket, 
call Cheryl F. Collins, Program Manager, Docket Operations, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

AHP Above Head of Passes
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
NPRM Notice of Proposed Rulemaking
CFR Code of Federal Regulation

A. 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.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, 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 at 
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, 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 email 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, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    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.

2. 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, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on Open Docket Folder on the line associated with this 
rulemaking. 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.

3. 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).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the methods specified under ADDRESSES. 
Requests for a public meeting must be received on or before March 9, 
2015. 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.

B. Regulatory History and Information

    On a routine basis, the Coast Guard previously established similar 
temporary moving security zones around escorted vessels as temporary 
final rules for the Lower Mississippi River. Those temporary final 
rules are accessible as explained above under ADDRESSES, [Docket Number 
USCG-2013-0994, 79 FR 7587, Feb. 10, 2014

[[Page 6449]]

and Docket Number USCG-2011-1063, 77 FR 30402, May 23, 2012]. There is 
a difference in the size of the moving security zones previously 
established. Docket USCG-2013-0994 established a 100 yard zone and 
Docket USCG-2011-1063 established a 300 yard zone. Based on the quality 
of communication and additional time allowed to grant permission to 
deviate from the rules, the Coast Guard will utilize the 300 yard zone 
for this interim rule. Through this interim rule, effective January 31, 
2015 through July 1, 2015, the Coast Guard will enforce temporary 
moving security zones around vessels being escorted by one or more 
Coast Guard or other Federal, State, or local law enforcement assets on 
the navigable waters of the Lower Mississippi River between river miles 
90.0 to 106.0 Above Head of Passes (AHP), New Orleans, LA. Once in 
effect, the specific enforcement dates and times for a temporary moving 
security zone around an escorted vessel will be noticed through 
broadcast notices to mariners.
    The Coast Guard is issuing this interim 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. Minimal notice regarding vessel escort 
operations is customary for security purposes. Based on risk 
evaluations completed, and information gathered after evaluating the 
security needs for escorted vessels during a period of high activity on 
and around the waterway, the Coast Guard determined that moving 
security zones are required. These moving security zones are needed to 
protect life and property, surrounding and including escorted vessels 
and their personnel from destruction, loss, or injury from sabotage or 
other subversive acts, accidents, or other causes of a similar nature 
during vessel escort operations. The NPRM process would be contrary to 
public interest by delaying the effective date or foregoing the 
necessary protections required for persons and property, surrounding 
and including escorted vessels and their personnel. Immediate action 
for each vessel escort and security zone is necessary to provide both 
waterway and waterside security and protection for life and property, 
surrounding and including escorted vessels and their personnel on the 
Lower Mississippi River.
    For the 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. Providing a full 30 
day notice would be contrary to the public interest because immediate 
action is needed to provide both waterway and waterside security and 
protection during vessel escort operations.

C. Basis and Purpose

    The legal basis and authorities for this rule are found in 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; Public Law 107-295, 116 Stat. 
2064; and Department of Homeland Security Delegation No. 0170.1, which 
collectively authorize the Coast Guard to establish and define 
regulatory security zones.
    The purpose of this rule is to provide enhanced protections related 
to escorted vessels transiting through the Lower Mississippi River 
between river miles 90.0 to 106.0 AHP during times of increased 
activity on and around the waterway. During these times, certain 
vessels, including high capacity passenger vessels, vessels carrying 
certain dangerous cargoes as defined in 33 CFR part 60, 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 Captain of the Port (COTP) New Orleans to require 
escort protection.
    As an additional protective measure for all those transiting the 
waterway during a vessel's escort, the Coast Guard will establish 
temporary moving security zones restricting navigation in portions of 
the Lower Mississippi River between river miles 90.0 to 106.0 AHP to 
provide both waterway and waterside security and protection. These 
security zones are necessary to protect life and property, surrounding 
and including escorted vessels and their personnel from destruction, 
loss or injury from sabotage or other subversive acts, accidents or 
other causes of a similar nature. This interim rule enables the COTP 
New Orleans to provide effective port security. This interim rule is 
also intended to minimize confusion and reduce administrative burdens 
related to implementing multiple individual temporary rulemakings for 
each security zone related to an escorted vessel.

D. Discussion of the Interim Rule

    The Coast Guard is establishing this interim rule under which the 
COTP New Orleans will enforce temporary moving security zones related 
to escorted vessels. Each security zone will extend 300 yards in all 
directions from the escorted vessel as it transits the Lower 
Mississippi River between river miles 90.0 to 106.0 AHP. Persons and 
vessels are prohibited from entering, remaining in or transiting 
through the security zone surrounding escorted vessels, unless 
authorized by the Coast Guard COTP New Orleans or a COTP designated 
representative. A vessel may request permission from the COTP New 
Orleans or the on-scene Coast Guard or enforcement agency asset to 
deviate from the requirements of this rule. Deviations from this rule 
may be requested from the COTP New Orleans through the on-scene Coast 
Guard or enforcement agency asset, via VHF Ch. 16 or 67. If permitted 
to enter the security zone or deviate from this rule, a vessel must 
proceed at the minimum safe speed possible for safe navigation and must 
comply with all orders issued by the COTP New Orleans or the on-scene 
asset. Vessels permitted to deviate from this rule and transit through 
the security zone shall maintain a distance of at least 50 yards from 
the escorted vessel.
    An escorted vessel is 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 flashing lights, 
vessel markings, or with agency insignia as listed below: Coast Guard 
surface or air asset displaying the Coast Guard insignia; Federal, 
State and/or local law enforcement asset displaying the applicable 
agency markings and/or equipment associated with the agency.
    In addition to the presence of these law enforcement assets for 
escorted vessels, the COTP New Orleans or a designated representative 
will inform the public through a broadcast notice to mariners that a 
temporary moving security zone is in effect around the escorted vessel. 
The broadcast notice to mariners of each temporary moving security zone 
concerning escorted vessels will inform the public of the enforcement 
period, size of the zone, and the navigable waters that will be 
affected. The broadcast notice will normally be issued at approximately 
30-minute intervals while the temporary moving security zone 
restrictions remain in effect.

[[Page 6450]]

    This rule is effective on January 31, 2015 through July 1, 2015.

E. Regulatory Analyses

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

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. It is not 
``significant'' under the regulatory policies and procedures of the 
Department of Homeland Security (DHS). Due to the duration of each 
individual temporary moving security zone that may be enforced under 
this interim rule and location, the impacts on routine navigation are 
expected to be minimal.
    This rule is not a significant regulatory action because each 
individual temporary moving security zone enforced under this interim 
rule will be in effect for short periods of time and notifications to 
the marine community will be made through broadcast notices to 
mariners. Deviation from this rule may be requested and will be 
considered on a case-by-case basis by the COTP New Orleans or the on-
scene Coast Guard or enforcement agency asset. Approved deviations will 
allow other vessels transiting the area to transit through the security 
zone, maintaining a distance of at least 50 yards from the escorted 
vessel. Additionally, the security zones are located within the New 
Orleans Harbor Vessel Service Area where vessels are required to check 
in when entering the area or departing berth. This check in requirement 
can assist in early review and granting of permission to deviate from 
this rule. Therefore, the impacts on routine navigation are expected to 
be minimal.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 escorted vessels between river miles 90.0 
and 106.0 AHP of the Lower Mississippi River. This rule will not have 
significant impact on a substantial number of small entities because 
the zones will be of limited sizes, encompassing the escorted vessel, 
of short durations and notifications to the marine community will be 
made through broadcast notices to mariners. In some cases, the security 
zones will leave ample space for vessels to navigate around them. If 
not, and security conditions permit, the COTP will attempt to provide 
flexibility for individual vessels to transit through the zones as 
needed. Deviation from this rule may be requested and will be 
considered on a case-by-case basis by the COTP or the on-scene Coast 
Guard or enforcement agency asset. Approved deviations will allow other 
vessels transiting the area to transit through the security zone, 
maintaining a distance of at least 50 yards from the escorted vessel. 
Additionally, the security zones are located within the New Orleans 
Harbor Vessel Service Area where vessels are required to check in when 
entering the area or departing berth. This check-in requirement can 
assist in early review and granting of permission to deviate from the 
rule.

3. 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 rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT 
section, above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

8. Taking of Private Property

    This rule will 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.

9. 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.

[[Page 6451]]

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule involves temporary moving security zones that 
prohibits persons and vessels from entering, remaining in or transiting 
through the security zone surrounding escorted vessels as they transit 
within the navigable waters of the Lower Mississippi between river 
miles 90.0 to 106.0 AHP, unless authorized by the Coast Guard COTP or a 
COTP designated representative. This rule is categorically excluded 
from further review under paragraph (34)(g) of Figure 2-1 or the 
Commandant Instruction. An environmental analysis checklist supporting 
this determination and a Categorical Exclusion Determination are 
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 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 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, 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.843 to read as follows:


Sec.  165.843  Moving Security Zone; Escorted Vessels; Lower 
Mississippi River; New Orleans, LA.

    (a) Definitions. The following definitions apply to this section:
    COTP means Captain of the Port New Orleans, LA.
    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 flashing lights, 
vessel markings, or with agency insignia as follows: 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.
    Minimum safe speed for navigation means the speed at which a vessel 
proceeds when it is fully off plane, completely settled in the water 
and not creating excessive wake or surge. 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 for navigation. 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:
    (i) On a plane;
    (ii) In the process of coming up onto or coming off a plane;
    (iii) Creating an excessive wake or surge.
    (b) Effective date. This rule is effective in the CFR on February 
5, 2015, and effective with actual notice for purposes of enforcement 
on January 31, 2015, through July 15, 2015.
    (c) Regulated area. All navigable waters, as defined in 33 CFR 
2.36, on the Lower Mississippi River between river miles 90.0 to 106.0 
Above Head of Passes (AHP), New Orleans, Louisiana.
    (d) Security zone. A temporary moving security zone, extending 300 
yards in all directions of an escorted vessel, will be established 
around each escorted vessel within the regulated area described in 
paragraph (b) of this section. The security zone will not extend beyond 
the boundary of the regulated area in this section.
    (e) Notice of security zone. The COTP will inform the public of the 
existence or status of any temporary moving security zones around 
escorted vessels in the regulated area by broadcast notices to 
mariners. The broadcast notice to mariners will inform the public of 
the enforcement period, size of the zone, and the navigable waters that 
will be affected, and will normally be issued at approximately 30-
minute intervals while the moving security zone remains in effect. 
Escorted vessels will be identified by the presence of Coast Guard 
assets or other Federal, State or local law enforcement agency assets 
clearly identified by flashing lights, vessel markings, or agency 
insignia.
    (f) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33, No person or vessel may enter or remain in a security 
zone without the permission of the Captain of the Port. Section 165.33 
also contains other general requirements.
    (2) Vessels may request permission from the Captain of the Port New 
Orleans through the on-scene Coast Guard or other agency asset to enter 
the security zone described in paragraph (c) of this section.
    (i) If permission to enter and transit through the security zone is 
granted, the vessel shall operate at the minimum speed necessary to 
maintain a safe course, unless required to maintain speed by the 
Navigation Rules, and must proceed as directed by the COTP or a 
designated representative. When within the security zone, no vessel or 
person is allowed within 50 yards of the escorted vessel unless 
authorized by the Coast Guard.
    (ii) [Reserved]

[[Page 6452]]

    (g) Contact information. The COTP New Orleans may be reached via 
phone at (504) 365-2200. Any on-scene Coast Guard or designated 
representative assets may be reached via VHF-FM channel 16 or 67.

    Dated: January 9, 2015.
P.C. Schifflin,
Captain, U.S. Coast Guard, Captain of the Port New Orleans.
[FR Doc. 2015-02322 Filed 2-4-15; 8:45 am]
BILLING CODE 9110-04-P