Rule2021-16048
Security Zone, Christina River, Newport, DE
Primary source
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Published
July 27, 2021
Effective
July 27, 2021
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 141 (Tuesday, July 27, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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, <a href="/cdn-cgi/l/email-protection#eca98881998288c2a6c2a38a8d8098ac999f8f8bc2818580"><span class="__cf_email__" data-cfemail="1055747d657e743e5a3e5f76717c6450656373773e7d797c">[email protected]</span></a>.
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\ <a href="https://www.transportation.gov/sites/dot.gov/files/docs/2015RevisedValueofTravelTimeGuidance.pdf">https://www.transportation.gov/sites/dot.gov/files/docs/2015RevisedValueofTravelTimeGuidance.pdf</a>.
\2\ <a href="https://www.census.gov/library/visualizations/interactive/2019-median-household-income.html">https://www.census.gov/library/visualizations/interactive/2019-median-household-income.html</a>. 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]
BILLING CODE 9110-04-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.