[Federal Register Volume 86, Number 141 (Tuesday, July 27, 2021)]
[Rules and Regulations]
[Pages 40149-40153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16048]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0131]
RIN 1625-AA87


Security Zone, Christina River, Newport, DE

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a security zone for certain 
waters of the Christina River to prevent waterside threats and 
incidents for persons under the protection of the United States Secret 
Service (USSS) as they transit by vehicle on the route 141 bridge over 
the Christina River near Newport, Delaware. The security zone will be 
enforced intermittently and only during times of a protected person 
transit over the bridge. Vessel traffic will be restricted while the 
zone is being enforced. This rule will prohibit persons and vessels 
from entering or remaining within the security zone unless authorized 
by the Captain of the Port Delaware Bay or a designated representative.

DATES: This rule is effective July 27, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0131 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Edmund Ofalt, Sector Delaware Bay, 
Waterways Management Division, U.S. Coast Guard; telephone 215-271-
4889, [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    Since January of 2021 the United States Secret Service (USSS) has 
routinely requested, pursuant to authorities listed in 18 U.S.C. 3056, 
the Coast Guard to implement a security zone in the vicinity of the 141 
bridge over the Christina River near Newport, Delaware. Between January 
1, 2021, and July 20, 2021, the waterside security zone around the 141 
bridge has been requested fourteen times. In response to these frequent 
requests the Coast Guard published a notice of proposed rulemaking 
(NPRM) on April 5, 2021, titled ``Security Zone; Christina River, 
Newport, DE'' (86 FR 17565). There we stated why we issued the NPRM and 
invited comments on our proposed regulatory action related to recurring 
transists of persons protected by the USSS across the 141 bridge in 
Newport, Delaware. During the comment period that ended May 5, 2021, we 
received one comment.
    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. Delaying the effective date of 
this rule would be impracticable and contrary to the public interest. 
This rule must be immediately effective to guard against potential acts 
of terrorism, sabotage, subversive acts, accidents, or other causes of 
a similar nature.

III. Legal Authority and Need for Rule

    Under the Ports and Waterways Safety Act, the Coast Guard has 
authority to establish water or waterfront safety zones, or other 
measures, for limited, controlled, or conditional access and activity 
when necessary for the protection of any vessel, structure, waters, or 
shore area, 46 U.S.C. 70011(b)(3). This rule safeguards the lives of 
persons protected by the Secret Service, and of the general public, by 
enhancing the safety and security of navigable waters of the United 
States during USSS protectee transits over the route 141 bridge over 
the Christina River near Newport, Delaware. The Coast Guard will 
activate the security zone when requested by the USSS for the 
protection of persons the USSS protects under 18 U.S.C. 3056 or 
pursuant to Presidential memorandum. The Coast Guard is issuing this 
rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231), as 
delegated by Department of Homeland Security Delegation 
No.00170.1(II)(70), Revision No. 01.2, from the Secretary of DHS to the 
Commandant of the U.S. Coast Guard, and further redelegated by 33 CFR 
1.05-1, 6.04-1, 6.04-6, and 160.5 to the Captains of the Port. The 
Captain of the Port Delaware Bay (COTP) has determined that recurring 
transits of persons under the protection of the USSS, which started in 
January of 2021, present a potential target for

[[Page 40150]]

terrorist acts, sabotage, or other subversive acts, accidents, or other 
causes of a similar nature. Due to the roadway passing over the 
Christina River, this security zone is necessary to protect these 
persons, the public, and the surrounding waterway.

IV. Discussion of Comments, Changes, and the Rule

A. Discussion of Comment

    As noted above, we received one comment on our NPRM published April 
5, 2021. The commenter made several points unrelated to this 
regulation.
    First, the commenter suggested alternate modes of travel, such as 
Marine One, for those persons protected by the USSS, and expressed 
concern about potential delays to landside vehicular traffic. The Coast 
Guard does not direct movements of USSS protectees. The Coast Guard 
cannot change the travel routes or methods of USSS protectees. The USSS 
is tasked with providing the highest level of security for those it 
protects and has requested the Coast Guard's assistance at this 
location. Accordingly, we have established this security zone, in 
consultation with, and at the request of the USSS.
    In addition, the commenter questioned the cost-impact of the rule. 
The commenter has suggested that the rule would exceed $100 million. We 
disagree with the commenter's statement. The costs of providing 
protection to USSS protectees is beyond the scope of this rule. The 
Coast Guard's responsibility within this rule is to secure the route 
141 bridge over the Christina River near Newport, Delaware and a 
portion of the waterway extending from both sides of the route 141 
bridge. The Coast Guard has assessed the economic impact of this rule 
and has concluded the impacts to recreational vessels to be minimal. 
We, therefore, disagree with the commenter's suggested economic cost--
impact of this rule to be in excess of $100 million.

B. Changes From the NPRM

    We made no changes to the NPRM related to comments submitted. 
However, we removed the use of the term ``VIP'' and replaced it with 
the term ``persons protected by the United States Secret Service'' to 
provide greater precision with this regulation and the authorities 
granted to the USSS by 18 U.S.C. 3056. In paragraph (b), the definition 
section, we have removed the term ``Very Important Person'' (VIP) and 
added in its place ``USSS protectee.''

C. The Rule

    This rule establishes a security zone for the protection of persons 
protected by the USSS under 18 U.S.C. 3056 or pursuant to Presidential 
memorandum as they transit by vehicle on the route 141 bridge over the 
Christina River near Newport Delaware. This rule is necessary to 
expedite the establishment and enforcement of this security zone when 
short notice is provided to the COTP for persons protected by the USSS 
traveling over the route 141 bridge. The security zone is bounded on 
the east by a line drawn from 39[deg]42.55' North Latitude (N), 
075[deg]35.88' West Longitude (W), thence southerly to 39[deg]42.50' N, 
075[deg]35.87' W proceeding from shoreline to shoreline on the 
Christina River in a westerly direction where it is bounded by the 
South James Street Bridge at 39[deg]42.63' N, 075[deg]36.53' W. No 
vessel or person would be permitted to enter the security zone without 
obtaining permission from the COTP or a designated representative.

V. 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 and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') 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 (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866. Accordingly, OMB has not reviewed it. A combined 
regulatory analysis (RA) and Regulatory Flexibility Analysis follows.
    This rule will establish a security zone around the route 141 
bridge, which crosses over the Christina River near Newport, Delaware. 
The approximate size of the security zone extends along the river for 
0.64 miles with a width of approximately 77 yards shore-to-shore. The 
security zone will be established 1 hour prior to the USSS protectee 
landing in the nearby airport. Prior to the 1 hour enforcement, the 
COTP will issue a broadcast via VHF-FM channel 16 allowing vessel 
traffic time to transit out of the enforcement area.
    In order to enforce this rule, the Coast Guard will station Coast 
Guard personnel at the borders of the security zones with the authority 
to manage boaters' movement through the security zone. Recreational 
boaters wanting to transit the area may inquire directly with the Coast 
Guard personnel (or other Federal, state, and local agencies assisting 
the Coast Guard in enforcement of this rule) posted at the boundaries 
of the security zones, rather than being required to contact the COTP 
for access to transit the area. In addition, once USSS and the USSS 
protectee are transiting towards the security zone, the zone becomes a 
restricted area and Coast Guard personnel will prohibit boaters from 
operating within the security zones.

[[Page 40151]]



             Table 1--Summary of Rule's Anticipated Impacts
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           Category                             Summary
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Potential affected population  Since this waterway is not federally
                                maintained, the Coast Guard does not
                                have data on the amount of boaters that
                                utilize this portion of the river, and
                                as a result are unable to provide
                                quantitative data pertaining to these
                                boaters. However, the Coast Guard
                                anticipates that those affected will be
                                small recreational vessels that are
                                capable navigating the shallow waters of
                                the river.
Costs........................  The costs associated with this rule, is
                                the loss of leisure time that boaters
                                will encounter while waiting for the
                                USSS protectee to transit across the
                                security zone.
Benefits.....................  This rule will secure an area that meets
                                the objectives of the USSS to maintain
                                USSS protectees safe.
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Affected Population
    The Coast Guard does not collect data on the vessels and 
individuals using the waterway, since the waterway is not federally 
maintained. However, the Coast Guard is able to the surmise the type of 
vessel traffic by studying the navigational chart that encompass the 
security zone. From the navigational chart the Coast Guard is able to 
discern the water depth to be 1 to 8 feet deep, and vertical clearance 
(by observing the fixed bridges along the waterway) to range between 22 
to 28 feet. Therefore, the Coast Guard concludes that the type of 
vessels most likely using the waterway are recreational boaters.
    Observable throughout Google maps, there is one access point, a 
boat ramp, located a few hundred yards from the route 141 bridge. 
During the enforcement of the security zone, local authorities will be 
restricting boater access to the river. As mentioned above, since this 
waterway is not federally maintained, the Coast Guard does not have 
data on the number of boaters that utilize this portion of the river; 
however, according to subject matter experts, the amount of traffic 
using this section of the river is minimal.
Costs
    Once the security zone is implemented, the Coast Guard anticipates 
that recreational boaters transiting the waterway may have a very brief 
conversation with Coast Guard officials stationed at both ends of the 
security zone. If access to transit is granted, recreational boaters 
would then proceed through the security zone (without stopping or 
loitering) and exit the security zone in a timely manner. We anticipate 
that this conversation would last between 15 and 30 seconds per 
recreational boater. Because we do not know the number boats, or how 
many recreational boaters are on the average boat and because of how 
small the amount of interaction per recreational boaters is likely to 
be, we are unable to anticipate total quantitative impacted burden 
these conversations will have on the affected population.
    In addition, during the actual transit of the USSS protectee 
crossing the route 141 bridge, all waterway traffic along the security 
zone will be halted. Since the USSS controls the movement of the USSS 
protectee, the Coast Guard is unable to discern the length of time the 
security zone will be closed once the USSS protectee is moving. Given 
the length of the bridge, the Coast Guard anticipates the length of 
time the security zone will be restrictive to be several minutes while 
the USSS protectee transits through the security zone.
    Although the Coast Guard is unable to obtain information about the 
frequency of boaters using the waterway, the Coast Guard was able to 
assess the rate by which leisure time is computed, and that rate comes 
to $15.80 per hour. The elements used to tabulate leisure wage is 
outlined in the DOT travel time guidance document.\1\ We also used the 
census information the obtain the median household income for the state 
of Delaware.\2\ The DOT travel time guidance document provided the 
methodology for determining leisure time. Even though the document is 
assessing surface travel, we accept the methodology used in the 
document as a good approximation for determining recreational boater's 
leisure time.
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    \1\ https://www.transportation.gov/sites/dot.gov/files/docs/2015RevisedValueofTravelTimeGuidance.pdf.
    \2\ https://www.census.gov/library/visualizations/interactive/2019-median-household-income.html. Published September 2020.

                                   Table 2--Summary of Leisure Wage Tabulated
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                                                                Description                           Values
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Median Household Income..................  We obtained the income data for the State of Delaware         $65,712
                                            from the census.
Reducing household income to hourly wage.  To determine the hourly wage, we divided the median            $31.59
                                            household income by 2,080, which is the approximate
                                            annual number of hours worked in a year by an
                                            individual working a 40 hour work week.
Value of Travel Time Savings (VTTS)......  Is a ratio that measures an individual's willingness              50%
                                            to pay to spend more time traveling. It is equal to
                                            50% of the hourly wage rate.
Total Leisure wage for Delaware..........  Calculated by multiplying VTTS by the hourly wage....          $15.80
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    The cost of the rule would be leisure rate multiplied by the amount 
of time boaters are prevented from enjoying their leisure time. 
Unfortunately, as mentioned above, the Coast Guard does not have 
information pertaining to the number of boaters using this waterway 
and, therefore, is unable assess total recreational boaters loss of 
leisure time for this rule. However, the Coast Guard is able to provide 
the per vessel (one individual boater per vessel) cost of this rule 
prior to fully restricting (100%) access to the security zone. The 
Coast Guard estimates interaction time between boaters and uniform 
personnel to average 23 seconds, for which we obtain an average per 
vessel cost of

[[Page 40152]]

$0.11(= $15.80 leisure wage * .007 equivalent hours \3\). In addition, 
in order to estimate the cost associated when the full restriction of 
the security zone is implemented, we make the assumption that it will 
take 10 minutes for the USSS protectees to transit through the security 
zone. The Coast Guard estimates those cost to be $2.69 (=$15.80 leisure 
wage * .17 equivalent hours \4\). The combined costs of vessel-boater 
interaction with uniform personal is estimated at $2.80. Although the 
information of the population is limited, Coast Guard is confident that 
the overall costs of this rule is minimal.\5\
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    \3\ To calculate the equivalent hours of 23 seconds, we divide 
23 by 3600 (3600 is the number of seconds in one hours). Hence, 23 
sec/3600 sec = .007 equivalent hour.
    \4\ Equivalent hour calculation for 10 min is 10 min/60 min = 
.17.
    \5\ The Coast Guard also estimated the round trip (arriving and 
leave Delaware using the same route) at $5.60 per vessel.
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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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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.

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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(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 a 
security zone for the protection of USSS protectees as they transit the 
route 141 bridge over the Christina River near Newport, Delaware. It is 
categorically excluded from further review under paragraph L[60a] of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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.

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 is 
amending 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 is revised to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.560 to read as follows:


Sec.  165.560   Security Zone; Christina River, Newport, DE.

    (a) Location. The following area is a security zone: All waters of 
the Christina River, from shoreline to shoreline bounded on the east by 
a line drawn from 39[deg]42.55' North Latitude (N), 075[deg]35.88' West 
Longitude (W), thence southerly to 39[deg]42.50' N, 075[deg]35.87' W 
thence along the Christina River in a westerly direction and bounded by 
the South James Street Bridge at 39[deg]42.63' N, 075[deg]36.53' W. 
These coordinates are based on North American Datum 83 (NAD83).

[[Page 40153]]

    (b) Definitions. As used in this section--
    Designated representative means a Coast Guard Patrol Commander, 
including a Coast Guard coxswain, petty officer, or other officer 
operating a Coast Guard vessel and a Federal, State, and local officer 
designated by or assisting the Captain of the Port Delaware Bay (COTP) 
in the enforcement of the security zone.
    Official patrol vessel means any Coast Guard, Coast Guard 
Auxiliary, State, or local law enforcement vessel assigned or approved 
by the COTP.
    USSS protectee means any person for whom the United States Secret 
Service (USSS) requests implementation of a security zone in order to 
supplement protection of said person(s).
    (c) Regulations. (1) In accordance with the general regulations 
contained in Sec.  165.33, entry into or movement within this zone is 
prohibited unless authorized by the COTP, Delaware Bay, or designated 
representative.
    (2) Only vessels or people specifically authorized by the Captain 
of the Port, Delaware Bay, or designated representative, may enter or 
remain in the regulated area. To seek permission to enter, contact the 
COTP or the COTP's representative on VHF-FM channel 13 or 16. Those in 
the security zone must comply with all lawful orders or directions 
given to them by the COTP or the COTP's designated representative. No 
person may swim upon or below the surface of the water of this security 
zone unless authorized by the COTP or his designated representative.
    (3) Upon being hailed by an official patrol vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed. Failure to 
comply with lawful direction may result in expulsion from the regulated 
area, citation for failure to comply, or both.
    (d) Enforcement. This security zone will be enforced with actual 
notice by the U.S. Coast Guard representatives on scene, as well as 
other methods listed in Sec.  165.7. The Coast Guard will enforce the 
security zone created by this section only when it is necessary for the 
protection of a USSS protectee traveling across the route 141 bridge in 
Newport, Delaware. The U.S. Coast Guard may be additionally assisted in 
the patrol and enforcement of the zone by Federal, State, and local 
agencies.

    Dated: July 23, 2021.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the Port, Delaware Bay.
[FR Doc. 2021-16048 Filed 7-26-21; 8:45 am]
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