[Federal Register Volume 81, Number 34 (Monday, February 22, 2016)]
[Rules and Regulations]
[Pages 8646-8649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02282]



[[Page 8646]]

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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.

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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. This rule follows the interim rule that published in the 
Federal Register on February 5, 2015, re-establishing the same moving 
security zone regulations 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 specific to making this rule a permanent final rule.

DATES: This rule is effective without actual notice from February 22, 
2016. For the purposes of enforcement, actual notice will be used from 
December 30, 2015 until February 22, 2016. Comments and related 
material must be received by the Coast Guard on or before April 22, 
2016.

ADDRESSES: You may submit comments identified by docket number [USCG-
2014-0995] using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or email Commander (CDR) Kelly Denning, Sector New Orleans, 
U.S. Coast Guard; telephone (504) 365-2391, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Acronyms

AHP Above Head of Passes
CFR Code of Federal Regulation
COTP Captain of the Port
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
MM Mile Marker
NPRM Notice of Proposed Rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On a routine basis, the Coast Guard previously established similar 
temporary moving security zones around escorted vessels as temporary 
final rules (TFR) for the Lower Mississippi River. Those TFRs are 
accessible as explained above under ADDRESSES, [Docket Number USCG-
2013-0994, 79 FR 7587, Feb. 10, 2014 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 through those TFRs. Docket 
USCG-2013-0994 established a 100 yard zone and Docket USCG-2011-1063 
established a 300 yard zone.
    The Coast Guard preceded this rule with another interim rule with 
request for comments. Based on the quality of communication and 
additional time allowed to grant permission to deviate from the rules, 
the Coast Guard utilized the 300 yard zone for the previous interim 
rule. On February 5, 2015, the previous interim rule was published in 
the Federal Register (80 FR 6448). That interim rule was effective from 
January 31, 2015 through July 1, 2015 without prior notice through 
publication in the Federal Register, but also requested comments. The 
Coast Guard received no comments on that interim rule and no requests 
for public meetings. No public meetings were held. This rule re-
establishes the previous interim rule without changes with one 
exception in the form of a technical revision which is discussed in 
section III of this document below.
    Through the previous interim rule, the Coast Guard enforced 
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 were noticed 
through broadcast notices to mariners. The Coast Guard did not receive 
any feedback causing us to believe the public opposes restrictions in 
future years to continue facilitating safe navigation and commerce 
during times of increased activity on and around the waterway.
    The legal basis and authorities for this rule are found in 33 
U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
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 dignitaries or VIPs, 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 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 rule enables the COTP New 
Orleans to provide effective port security. This 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.
    The Coast Guard is issuing this interim rule without prior notice 
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 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

[[Page 8647]]

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. The Coast Guard finds that good cause exists for making this 
interim rule effective less than 30 days after publication in the 
Federal Register under 5 U.S.C. 553(d)(3). Delaying the effective date 
of this rule is unnecessary. From January 31, 2015 to July 1, 2015, the 
previous interim rule was in effect and public comments were requested. 
No public comments or requests for public meetings were received during 
the effective period. External outreach to port and waterways 
stakeholders confirmed no opposition to the interim rule as published. 
As no substantive changes have been made to this interim rule, delaying 
the effective date of the rule is unnecessary.

III. Discussion of Interim Rule

    Through this interim rule, the Coast Guard is re-establishing 
temporary moving security zones as previously established under 33 CFR 
165.843, published in the Federal Register on February 5, 2015 (80 FR 
6448). As provided in the previous rule, 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.
    The previous interim rule also requested comments. No comments were 
received. No changes to the restrictions or regulations of the rule 
have been made from the previous interim rule. One technical amendment 
is being made to the rule. As previously published, paragraph (d) read 
``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.'' In this interim rule, 
this section is changed to reflect the appropriate paragraph referenced 
for the description of the regulated area, which is paragraph (c) of 
the regulation. Paragraph (d) reads as follows; ``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 (c) of this section. 
The security zone will not extend beyond the boundary of the regulated 
area in this section.''

IV. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and E.O.s, and we discuss 
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This interim rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, the interim rule 
has not been reviewed by the Office of Management and Budget.
    This interim rule is not a significant regulatory action because 
each individual temporary moving security zone enforced under this 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.

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B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 
would 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.
    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 (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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. 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.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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. If you believe this rule has 
implications for federalism or Indian tribes, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. 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.

F. 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 (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. This rule involves temporary moving security zones that 
prohibit 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 of Commandant 
Instruction M16475.lD. 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.

G. 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. We 
specifically seek comments regarding making this interim rule a 
permanent final rule in its current form for 2016 and as it was 
effective between January and July of 2015. 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION

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CONTACT section of this document for alternate instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this rule as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 
22 CFR part 165 to read 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 a 
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; or
    (iii) Creating an excessive wake or surge.
    (b) 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.
    (c) 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.
    (d) 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.
    (e) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of subpart D of this part, 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]
    (f) 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: December 30, 2015.
W.R. Arguin,
Captain, U.S. Coast Guard, Acting Captain of the Port New Orleans.
[FR Doc. 2016-02282 Filed 2-19-16; 8:45 am]
BILLING CODE 9110-04-P