2010-26670. Security Zones; Sabine Bank Channel, Sabine Pass Channel and Sabine-Neches Waterway, TX

AGENCY:

Coast Guard, DHS.

ACTION:

Interim rule with request comments.

SUMMARY:

The Coast Guard is issuing an interim rule based on comments received from the subject Notice of Proposed Rulemaking published in the Federal Register on May 27, 2010. This interim rule establishes moving security zones for certain vessels for which the Captain of the Port, Port Arthur deems enhanced security measures necessary. In addition, it establishes security zones encompassing the mooring basins of LNG carriers while they are moored at the Golden Pass LNG facility in Sabine, TX and/or the Sabine Pass LNG facility located in Cameron Parish, LA.

DATES:

This interim rule is effective in the CFR on October 22, 2010. This rule is effective with actual notice for the purposes of enforcement on August 23, 2010. Comments and related material must be received by the Coast Guard on or before November 22, 2010. Requests for public meetings must be received by the Coast Guard on or before November 1, 2010.

ADDRESSES:

You may submit comments identified by docket number USCG-2009-0316 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this interim rule, call or e-mail Mr. Scott Whalen, Marine Safety Unit Port Arthur, TX; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0316), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov,, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand delivery, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. Insert “USCG-2009-0316” in the “Keyword” box. Click “Search” then in the interim rule row click on the balloon shape in the “Actions” column. If you submit comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 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 this rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-0316” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. 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.

Regulatory Information

On May 27, 2010, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; Sabine Bank Channel, Sabine Pass Channel and Sabine-Neches Waterway, TX” in the Federal Register (75 FR 29695). We received one comment on the proposed rule. No meetings were requested and none were held.

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 finding is based on the fact that the Coast Guard received only one comment concerning the published NPRM and that the changes incorporated are not substantive. That is, the changes will not result in any interference to normal vessel traffic in the area. By making the interim rule effective less than 30 days after publication the necessary security zones can be implemented without further delay. And, additional comments and the security zones established by this interim rule will be evaluated throughout the interim rule comment period.

Basis and Purpose

The Coast Guard is establishing moving security zones for certain vessels, for which the Captain of the Port deems enhanced security measures are necessary. Mariners will be notified of the activation of a moving security zone by Broadcast Notice to Mariners. Active moving security zones may also be identified by the presence of escort vessels displaying flashing blue law enforcement lights.

The moving security zones would be activated for certain vessels within the U.S. territorial waters through Sabine Bank Channel, Sabine Pass Channel and the Sabine-Neches Waterway, extending from the surface to the bottom. These moving security zones would extend channel edge to channel edge on the Sabine Bank and Sabine Pass Channel and shoreline to shoreline on the Sabine-Neches Waterway, 2 miles ahead and 1 mile astern of the designated vessels while in transit. Meeting, crossing or overtaking situations are not permitted within the security zone unless specifically authorized by the Captain of the Port.

In addition, the Coast Guard is establishing security zones for the mooring basins at the Golden Pass LNG facility in Sabine, TX and the Sabine Pass LNG facility located in Cameron Parish, LA while LNG carriers are moored at these facilities.

These proposed security zones would be part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks.

All vessels not exempted under paragraph (b) of § 165.819 would be prohibited from entering or remaining in these security zones unless authorized by the Captain of the Port, Port Arthur or his designated representative. For authorization to enter the proposed security zones, vessels can contact the Captain of the Port's on-scene representative or Vessel Traffic Service Port Arthur on VHF Channel 01A or 65A, by telephone at [phone], or by facsimile at [phone].

Discussion of Comments and Changes

The Coast Guard received one comment requesting that the establishment of a security zone extending 100-feet around LNG carriers while moored at Sabine Pass LNG and Golden Pass LNG facilities be extended to include the entire mooring basin. The Coast Guard concurs with this recommendation and modified the regulatory language in § 165.819 (a)(1) accordingly. Additionally, the commenter noted that the location of the Sabine Pass facility should be changed from Cheniere, LA to Cameron Parish, LA. This change was also incorporated into the final regulatory language.

Regulatory Analyses

We developed this interim 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.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The basis of this finding is that the proposed fixed security zones around moored LNG carriers would be of limited size and duration and the affected area would not hinder or delay regular vessel traffic. The moving security zone wound be limited and would not create undue delay to vessel traffic because vessel traffic may request permission to enter the zone from the Captain of the Port.

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 might be small entities: The owners or operators of vessels intending to transit through the fixed or moving security zones. The fixed security zones are of limited size and duration and the affected area will not hinder or delay regular vessel traffic. The moving security zone rule will not create undue delay to vessel traffic because vessel traffic may request permission to enter the zone.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this 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 (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.

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.

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 that 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. This rule addresses regulations establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 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, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add new § 165.819 to read as follows:

§ 165.819

Security Zone; Sabine Bank Channel, Sabine Pass Channel and Sabine-Neches Waterway, TX.

(a) Location. (1) The following LNG facility mooring basins are designated as fixed security zones whenever LNG carriers are moored within them:

(i) Golden Pass LNG, Sabine TX: All waters south of a line connecting the following points—beginning at 29°45′58″ N, 093°55′40″ W; then east to a point at 29°45′52.8″ N, 093°55′20.8″ W; then bearing 120° T to the shoreline at 29°45′50″ N, 093°55′17″ W.

(ii) Sabine Pass LNG, Cameron Parish, LA: All waters north of a line connecting the following points—beginning at the shoreline in position 29°44′34.7″ N, 093°52′29″ W; then southeast to a point at 29°44′31.4″ N, 093°52′26.4″ W; then bearing 121° T to a point at 29°44′25.2″ N, 093°52′14.6″ W; then bearing 116° T to the shoreline at 29°44′23.75 N, 093°52′00″ W.

(2) The following areas are designated as moving security zones: All waters of the Captain of the Port, Port Arthur Zone commencing at U.S. territorial waters and extending from the surface to the bottom, channel edge to channel edge on the Sabine Bank and Sabine Pass Channels and shoreline to shoreline on the Sabine-Neches Waterway, 2 miles ahead and 1 mile astern of certain designated vessels while in transit within in the Captain of the Port, Port Arthur zone. Mariners would be notified of designated vessels by Broadcast Notice to Mariners and the presence of escort vessels displaying flashing blue law enforcement lights.

(b) Regulations. (1) Entry into or remaining in a fixed security zone described in paragraph (a)(1) of this section is prohibited for all vessels except:

(i) Commercial vessels operating at waterfront facilities within these zones;

(ii) Commercial vessels transiting directly to or from waterfront facilities within these zones;

(iii) Vessels providing direct operational or logistical support to commercial vessels within these zones;

(iv) Vessels operated by the appropriate port authority or by facilities located within these zones; and

(v) Vessels operated by Federal, State, county, or municipal law enforcement agencies.

(2) Entry into or remaining in a moving security zone described in paragraph (a)(2) of this section is prohibited for all vessels except:

(i) Moored vessels or vessels anchored in a designated anchorage area. A moored or an anchored vessel in a security zone described in paragraph (a)(2) of this section must remain moored or anchored unless it obtains permission from the Captain of the Port to do otherwise;

(ii) Commercial vessels operating at waterfront facilities located within the zone;

(iii) Vessels providing direct operational support to commercial vessels within a moving security zone;

(iv) Vessels operated by Federal, State, county, or municipal law enforcement agencies.

(3) Meeting, crossing or overtaking situations are not permitted within the security zone described in paragraph (a)(2) of this section unless specifically authorized by the Captain of the Port.

(4) Other persons or vessels requiring entry into security zones described in this section must request permission from the Captain of the Port, Port Arthur or designated representative.

(5) To request permission to enter a security zone described in this section, contact Vessel Traffic Service Port Arthur on VHF Channel 01A or 65A; by telephone at [phone]; by fax at [phone]; or contact the Captain of the Port's designated on-scene patrol vessel on VHF channel 13 or 16.

(6) All persons and vessels within a security zone described in this section must comply with the instructions of the Captain of the Port, Port Arthur, designated on-scene U.S. Coast Guard patrol personnel or other designated representatives. Designated on-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard. Designated representatives include Federal, State, local and municipal law enforcement agencies.

Dated: August 23, 2010.

J.J. Plunkett,

Captain, U.S. Coast Guard, Captain of the Port, Port Arthur.