02-28090. Security Zones; Captain of the Port Houston-Galveston Zone

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing security zones within the ports of Houston, Morgan's Point, Bayport, Texas City, and Freeport, Texas. These zones are being established to protect waterfront facilities, persons, and vessels from subversive or terrorist acts. Entry of persons and vessels into these zones is prohibited except as authorized by this rule or by the Captain of the Port Houston-Galveston.

DATES:

This section is effective from 8 a.m. on October 15, 2002 through 8 a.m. on April 15, 2003.

ADDRESSES:

Documents indicated in this preamble as being available in the docket, are part of docket [COTP Houston-Galveston-02-018] and are available for inspection or copying at U.S. Coast Guard Marine Safety Office Houston-Galveston, 9640 Clinton Dr, Galena Park, TX 77547 between 8 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Junior Grade (LTJG) George Tobey, Port Waterways Management, Marine Safety Office Houston-Galveston, TX at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM and, under 5 U.S.C. 553 (d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

On June 11, 2002 the Coast Guard published a temporary final rule entitled “Security Zones; Captain of the Port Houston-Galveston Zone” [COTP Houston-Galveston-02-011] (67 FR 39851). This rule was required to respond to security concerns within the Captain of the Port Houston-Galveston zone following the September 11, 2001 attacks on the World Trade Center towers in New York City and the Pentagon in Washington DC. October 15, 2002 is the expiration date of that rule.

National security and intelligence officials continue to warn that future terrorist attacks against United States interests are likely. The Captain of the Port Houston-Galveston is establishing a new temporary final rule that encompasses many of the same areas covered in the expiring rule. Any delay in making this new rule effective would be contrary to the public interest because immediate action is necessary to protect against the possible loss of life, injury, or damage to property.

On June 11, 2002, we published an NPRM entitled “Security Zones; Captain of the Port Houston-Galveston Zone” [COTP Houston-Galveston-02-009] (67 FR 39919). The NPRM proposed to replace the existing temporary security zones with permanent zones. The comment period for the NPRM expired on August 12, 2002. We received only two comments on this rule and both of these comments asked for information on how to comment on the proposed rule. As a result of these comments and to reflect changes in the size of the security zones in this rule the Coast Guard intends to issue a supplemental notice of proposed rule making and reopen the comment period.

Background and Purpose

On September 11, 2001, both towers of the World Trade Center and the Pentagon were attacked by terrorists. The President has continued the national emergencies he declared following those attacks (67 FR 58317 (Sep. 13, 2002) (continuing the emergency declared with respect to terrorist attacks); 67 FR 59447 (Sep. 20, 2002) (continuing emergency with respect to persons who commit, threaten to commit or support terrorism)). The President also has found pursuant to law, including the Magnuson Act (50 U.S.C. 191 et seq.), that the security of the United States is and continues to be endangered following the terrorist attacks (E.O. 13,273, 67 FR 56215 (Sep. 3, 2002) (security of U.S. endangered by disturbances in international relations of U.S. and such disturbances continue to endanger such relations). In response to these terrorist acts, heightened awareness and security of our ports and harbors became necessary. To enhance security the Captain of the Port Houston-Galveston established temporary security zones published in the Federal Register on June 11, 2002 (67 FR 39851). The original rule established security zones within the ports of Houston, Bayport, Texas City and Freeport, TX.

In order to provide continuous protection while permanent zones are being promulgated through notice and comment rule making the Coast Guard is establishing a new temporary final rule for the ports of Houston, Morgan's Point, Bayport, Texas City and Freeport, TX. This rule establishes distinct security zones in these areas with slight modifications from the previous rule and includes the addition of a new zone for Morgan's Point, TX. The Morgan's Point security zone was originally proposed in the NPRM published on June 11, 2002 (67 FR 39919). We received no comments or objections regarding the security zone for Morgan's Point.

These zones are being established to protect waterfront facilities, persons, and vessels from subversive or terrorist acts. They are being established around areas concentrated with commercial facilities considered critical to national security. This rule is designed to restrict access to vessels engaged, or assisting in commerce with waterfront facilities within the security zones, vessels operated by port authorities, vessels operated by waterfront facilities within the security zones, and vessels operated by federal, state, county or municipal agencies. By limiting access to these areas the Coast Guard is increasing the opportunity for detection and reducing potential methods of attack on vessels, waterfront facilities within the security zones, and adjacent population centers located near the zones.

The size of the Houston security zone remains unchanged from the original rule and NPRM. It includes the Houston Ship Channel and all associated turning basins, bounded by a line drawn between Houston Ship Channel Light 132 and Houston Ship Channel Light 133 west to the T & N Rail Road Swing Bridge at the entrance to Buffalo Bayou, including all waters adjacent to the ship channel from shoreline to shoreline and the first 200 yards of connecting waterways.

The Morgan's Point security zone includes the waters of Barbours Cut Ship Channel and Turning Basin west of a line drawn between Junction Light “Barbours Cut” and Houston Ship Channel Light 91.

The security zone for Bayport is being increased to create a zone slightly larger than that published in the original rule and NPRM. This will have a minimal impact on vessel traffic because the northern portion of the ship channel remains open. The Bayport security zone includes all waters of the Port of Bayport, Bayport Ship Channel and Bayport Turning Basin south of latitude 29°36′45″ N and west of the Bayport Ship Channel Light 9.

The security zone for Texas City increases the size of the zone to provide protection for facilities which were previously just outside of the zone. The Texas City security zone includes all waters of the Port of Texas City Channel, Turning Basin and Industrial Canal containing South and West of a line drawn from Texas City Channel Light 19 through Cut B Inner Range Front Light and terminating on land in position 29°23′16″ N, 94°53′15″ W.

The security zones for Freeport have been modified to reflect the zones as they are described in the NPRM. These zones are slightly smaller than those in the original rule and are now drawn along more natural boundaries. The Dow Barge Canal security zone contains all waters bounded by its junction with the Intracoastal Waterway from a line drawn between an eastern point at 28°56′48″ N, 95°18′20″ W and a western point at 28°56′40″ N, 95°18′33″ W. The Brazos Harbor security zone contains all waters west of a line drawn between the northern point at 28°56′27″ N, 95°20′00″ W, and the southern point 28°56′09″ N, 95°20′00″ W.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The impacts on routine navigation are expected to be minimal. Vessels engaged or assisting, in commerce with facilities located within the zones or having the express permission of the Captain of the Port Houston-Galveston, are authorized entry under this rule.

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 security zone will not have an impact on a substantial number of small entities because this rule will not obstruct the regular flow of commercial vessel traffic conducting business within the zones. Other vessels may seek permission for entry into the zone from the Captain of the Port Houston-Galveston.

If you are a small business entity and are significantly affected by the regulation please contact LTJG George Tobey at U.S. Coast Guard Marine Safety Office Houston-Galveston, TX at [phone].

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), 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).

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we so discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because this rule is not expected to result in any significant environmental impact as described in the National Environmental Policy Act of 1969 (NEPA). A “Categorical Exclusion Determination” is available for inspection or copying 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

2. A new temporary § 165.T08-108 is added to read as follows:

§ 165.T08-108

Security Zones; Captain of the Port Houston-Galveston Zone.

(a) Location. The following areas are designated as security zones:

(1) Houston, TX. The Houston Ship Channel and all associated turning basins, bounded by a line drawn between Houston Ship Channel Light 132 (LLNR-24445) and Houston Ship Channel Light 133 (LLNR-24450) west to the T & N Rail Road Swing Bridge at the entrance to Buffalo Bayou, including all waters adjacent to the ship channel from shoreline to shoreline and the first 200 yards of connecting waterways.

(2) Morgan's Point, TX. The Barbours Cut Ship Channel and Turning Basin containing all waters west of a line drawn between Junction Light “Barbours Cut” 29°41′12″ N, 94°59′12″ W (LLNR-23525), and Houston Ship Channel Light 91, 29°41′00″ N, 94°59′00″ W (LLNR-23375) (NAD 1983).

(3) Bayport, TX. The Port of Bayport, Bayport Ship Channel and Bayport Turning Basin containing all waters south of latitude 29°36′45″ N and west of the Bayport Ship Channel Light 9 (LLNR-23295) (NAD 1983).

(4) Texas City, TX. The Port of Texas City Channel, Turning Basin and Industrial Canal containing all waters bounded by the area South and West of a line drawn from Texas City Channel Light 19 (LLNR 24810) through Cut B Inner Range Front Light (LLNR 24765) and terminating on land in position 29°23′16″ N, 94°53′15″ W (NAD 1983).

(5) Freeport, TX. (i) The Dow Barge Canal containing all waters bounded by its junction with the Intracoastal Waterway, by a line drawn between the eastern point at 28°56′48″ N, 95°18′20″ W, and the western point at 28°56′40″ N, 95°18′33″ W (NAD 1983).

(ii) The Brazos Harbor containing all waters west of a line drawn between the northern point at 28°56′27″ N, 95°20′00″ W, and the southern point 28°56′09″ N, 95°20′00″ W (NAD 1983) at its junction with the Old Brazos River Cut.

(b) Effective dates. This section is effective from 8 a.m. on October 15, 2002 through 8 a.m. on April 15, 2003.

(c) Regulations. (1) Entry into these zones is prohibited except for the following:

(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/logistic 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 agencies.

(2) Other persons or vessels requiring entry into a zone described in this section must request express permission to enter from the Captain of the Port Houston-Galveston, or his designated representative.

(3) To request permission as required by these regulations contact “Houston Traffic” via VHF Channels 11/12 or via phone at [phone].

(4) All persons and vessels shall comply with the instructions of the Captain of the Port Houston-Galveston and designated on-scene U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.

Dated: October, 11 2002.

Kevin S. Cook,

Captain, U.S. Coast Guard, Captain of the Port Houston-Galveston.