Security Zones; Lewes and Rehoboth Canal and Atlantic Ocean, Rehoboth, DE

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing two security zones for certain waters of Rehoboth Beach to prevent waterside threats and incidents for persons under the protection of the United States Secret Service (USSS) in the vicinity of Rehoboth Beach, Delaware. These security zones will be enforced intermittently and only for the protection of persons protected by USSS when in the area and will restrict vessel traffic while the zone is being enforced. This rule prohibits vessels and people from entering the zones unless specifically exempt under the provisions of this rule or granted specific permission from the Captain of the Port (COTP) Delaware Bay or a designated representative. Any vessel requesting to transit the zones without pause or delay will typically be authorized to do so by on-scene enforcement vessels.

DATES:

This rule is effective August 26, 2021.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov,, type USCG-2021-0208 in the search box and click “Search.” Next, in the Document Type column, select “Supporting & Related Material.”

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rulemaking, call or email Petty Officer Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division; telephone 215-271-4889, email Edmund.J.Ofalt@usccg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

On occasion the USSS has requested heightened security measures for persons protected by the USSS in the vicinity of Rehoboth Beach, Delaware. In response, on June 3, 2021, the Coast guard published a notice of proposed rulemaking (NPRM) titled “Security Zones; Lewes and Rehoboth Canal and Atlantic Ocean, Rehoboth, DE” (86 FR 29727). There, we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to these visits by USSS protectees. During the comment period that ended July 19, 2021, we received no comments.

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 presence in Rehoboth, 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 presence of persons under the protection of the USSS, which started in January of 2021, presents a potential target for terrorist acts, sabotage, or other subversive acts, accidents, or other causes of a similar nature. This security zone is necessary to protect these persons, the public, and the surrounding waterways.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received no comments on our NPRM published June 3, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM, other than a correction of a minor grammatical error in paragraph (a).

This rule establishes two security zones for the protection of USSS protectees when present in the vicinity of Rehoboth Beach, Delaware. This rule is necessary to expedite the establishment and enforcement of these security zones when short notice is provided to the COTP for USSS protectees who may be present in the area.

Security Zone One is bounded on the north by a line drawn from 38°44.36′ North Latitude (N), 075°5.32′ West Longitude (W), thence easterly to 38°44.37′ N, 075°5.31′ W proceeding from shoreline to shoreline on the Lewes and Rehoboth Canal in a Southeasterly direction where it is bounded by a line drawn from 38°43.89′ N, 075°5.31′ W, thence easterly to 38°43.90′ N, 075°5.07′ W thence northerly across the entrance to the yacht basin to 38°43.93′ N, 075°5.09′ W.

Security Zone Two extends 500 yards seaward from the shoreline, into the Atlantic Ocean beginning at 38° 44.86′ N, 075° 4.83′ W, proceeding southerly along the shoreline to 38°43.97′ N, 075°4.70′ W.

These security zones may be activated individually or simultaneously with respect to the presence of USSS protectees. These zones will be enforced intermittently. Enforcement of these zones will be broadcast via Broadcast Notice to Mariners (BNM) and/or local Safety Marine Information Broadcast (SMIB) on VHF-FM marine channel 16, as well as actual notice via on-scene Coast Guard Personnel. The public can learn the status of the security zone via an information release for the public via website https://homeport.uscg.mil/my-homeport/coast-guard-prevention/waterway-management?cotpid=40.

No vessel or person is permitted to enter either security zone without first obtaining permission from the COTP or a designated representative. However, we anticipate that vessels requesting to transit these zones will typically be authorized to transit without pause or delay by on-scene enforcement vessels. When a vessel or person is permitted to enter the security zone after obtaining permission from the COTP or a designated representative, the vessel or person must proceed as directed by on-scene enforcement vessels. Any vessel or person permitted to transit the security zone will be required to continue through the zone without pause or delay as directed by on-scene enforcement vessels. No vessel or person will be permitted to stop or anchor in the security zone. At times, for limited duration, it is anticipated that vessels may be prohibited from entering the zone due to movement of persons protected by USSS. During those times, actual notice will be given to vessels in the area.

When these security zones are enforced, the COTP will issue a BNM and/or SMIB via VHF-FM channel 16. The public can learn the status of the security zone via an information release for the public via website https://homeport.uscg.mil/my-homeport/coast-guard-prevention/waterway-management?cotpid=40.

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 the following two security zones: (1) A half-mile stretch of the Lewes and Rehoboth Canal; and (2) a one-mile section of Rehoboth Beach stretching 500 yards from the shoreline. The enforcement of these two security zones is expected to be intermittent. Vessels will normally be allowed to transit but not stop within the security zones. However, when persons protected by the USSS are moving in or out of the area, the Coast Guard may halt traffic in these two security zones. The Coast Guard expects such instances to happen relatively infrequently and for a short duration (1-3 hours).

The Coast Guard will station Coast Guard personnel at the borders of the security zones with the authority to enforce this security zone. In the few instances where USSS protectees are in transit, these Coast Guard personnel will ensure that no traffic transits through the security zones. Recreational boaters wishing to transit the area may inquire directly with the Coast Guard personnel posted at the boundaries of the security zones, rather than being required to contact the COTP.

Table 1 provides a summary of the rule's costs and qualitative benefits.

Affected Population

The Coast Guard does not collect data on the vessels and individuals using either the Lewes and Rehoboth Canal or the North Shores Section of Rehoboth Beach, the areas that would be impacted by this rule. To estimate the affected population, we used information directly observable from Google Maps, as well as the subject-matter expertise of Coast Guard personnel with knowledge of the area.

The two security zones—a half-mile section of the Lowes Rehoboth Canal and a one-mile section of Rehoboth Beach—are distinct. As such, we assess the affected populations for these two areas separately.

(1) Security Zone 1: Lewes Rehoboth Canal

This regulation will impact any recreational boater wishing to transit the Lewes Rehoboth Canal. The Lewes Rehoboth Canal is about 10 miles long and connects the Broadkill River and the Delaware Bay to Rehoboth Bay. The security zone begins approximately two-thirds of the way through the canal (if starting from the Delaware Bay) and lasts for about a half mile. As such, recreational boaters wishing to transit the canal from the communities of Lewes, Dewey Beach, North Shores, Rehoboth Beach, and West Rehoboth may be impacted by this rule.

These communities are seasonal; their populations are much larger and more active in the summer than in the winter. Vessel traffic in the canal follows the same pattern. Coast Guard officers stationed in this region estimated the numbers of vessels transiting this zone per day by season. We present these estimates in table 2.

The vessel traffic in the canal is entirely recreational. There are no commercial vessels that transit the canal. Moreover, the canal is quite shallow. The Coast Guard's 27-foot vessels navigate the canal with difficulty because of the depth. Kayaks, canoes, and other manually powered watercraft are frequently used in the canal (not counted in the daily vessel traffic estimates).

In addition to the daily traffic of recreational boaters wishing to transit the security zone, there are a number of boat slips located either within the security zone or that require transiting the security zone to access. There are also houses that border sections of the canal wholly inside the security zone. We reviewed satellite images from Google Maps to identify the number of boat slips within the security zone or that require transiting the security zone to access. Based on these satellite images, we estimate that 17 private houses that lie entirely within the canal security zone contain either a boat slip or dock. The boat slips indicate that recreational vessel usage might be undertaken by the owners or occupiers of these properties. Because they lie fully inside the security zone, they will be impacted every time they take out their vessels.

Additionally, a small man-made canal branches off the main Lewes and Rehoboth Canal and leads into a small man-made lake. The southern edge of the safety zone continues just past the entrance to this second canal. Private houses and the North Shores Marina inhabit the land surrounding the second canal and its adjoining lake. Some of these houses contain docks or boat slips. Recreational vessel operations will require transiting through the security zone to reach either the boat slips at these private homes or the North Shores Marina. Use of this canal and lake is primarily local and by small recreational vessels, as this second canal may only be 3 feet deep in certain places. Using Google Maps, we count 14 boat slips or docks connected to private houses and 30 spaces for recreational vessels at the North Shores Marina.

(2) Security Zone 2: Rehoboth Beach

This rule will also impact any recreational boaters that transit the area 1 mile by 500 yards offshore of the North Shores section of Rehoboth Beach. Because of its proximity to the shore, the Coast Guard does not estimate any recreational boaters or commercial vessels routinely operate in this section of the ocean. Vessels operating this close to shore could face additional hazards due to the surf and other marine currents and would avoid this area.

Costs

As above, we assess the costs of the two security zones separately.

(1) Security Zone 1: Lewes and Rehoboth Canal

In table 2, we present the Coast Guard's estimate of the average vessel traffic. Under normal course of operations, the Coast Guard anticipates that recreational boaters transiting the canal would have a brief conversation with the Coast Guard official stationed at the entrance to the security zone. Recreational boaters would then proceed through the security zone (without stopping or loitering) and exit the security zone. We anticipate that this conversation would last between 15 and 30 seconds per recreational boater. Because we do not know how many recreational boaters are on the average boat and because of how small the amount of time per recreational boaters is likely to be, we do not estimate the total costs of these conversations.

Additionally, above we discussed that there are a number of houses and a marina that are contained within the security zone or would require transiting the security zone in order to access. Recreational vessel operators who reside or are visiting a location inside the security zone should be able to relay this information to the Coast Guard personnel stationed at the entrance of the security zone. When recreational boaters provide this additional information, it may increase the duration of the conversation. However, there are only 17 houses with private docks or boat slips contained within the security zone. It is likely, therefore, that the Coast Guard personnel stationed at either end of the security zone would become aware of these vessels and their owners and operators. As a result, conversations may become more brief over time.

In order to access the private docks and boat slips of the 14 houses and the North Shores Marina, recreational vessel operators will need to transit through a small portion of the security zone. The Coast Guard will interpret the vessels seeking to access this second canal as innocent passage. As a result, the Coast Guard personnel do not intend to converse with recreational boaters intending to access the second canal unless they notice suspicious activity. Instead, Coast Guard personnel will report vessels transiting the second canal to the USSS representatives. Because Coast Guard personnel will not converse with the recreational vessel operators transiting this region, we estimate that there would be no costs on boaters who only pass through the lower stretch of the canal security zone in order to access the North Shores Marina or the private houses on the canal or lake.

The costs discussed above cover the normal operations when access to the canal is still permitted. However, when certain individuals protected by the USSS are transiting the area, the Coast Guard may shut down access to the canal. Such closures could last from 1 to 3 hours, or longer. If the security zone is closed to all traffic, recreational boaters will not be able to transit the length of the canal. Recreational boaters wishing to transit through the security zone will be unable to do so.

If this closure happens suddenly, recreational boaters could be stranded on either side of the canal. The distance through the canal is about 10 miles, but to avoid the canal by taking a more circuitous route around Rehoboth Beach would add 25 miles to the journey. Additionally, a significant portion of this distance requires operating in the Atlantic Ocean. The Atlantic Ocean is considerably rougher than the intracoastal waterways. As a result, many of the recreational watercraft unable to transit the security zone may be unable to take an alternate route, either because they may not have a vessel suitable to a coastwise route or may not have the time to add an additional 25 miles on to the journey.

Because we do not know the frequency or duration of full closures of the security zone, we are unable to quantitatively assess the costs to either temporarily stranded vessel operators or to vessel operators wishing to transit the closed waterway.

(2) Security Zone 2: North Shores Section of Rehoboth Beach on the Atlantic Ocean

We do not estimate that any vessels routinely operate in this section of Rehoboth Beach, as discussed in the Affected Population section above. Additionally, were recreational vessel operators to transit this security zone, it is far easier to exit or avoid the security zone than in the canal. Recreational boaters merely will need to be greater than 500 yards from shore. As a result, we do not estimate any costs incurred by the second security zone.

Benefits

Upon request by the USSS for the Coast Guard to implement security measures in certain sections of the Lewes and Rehoboth Canal and certain sections offshore from Rehoboth Beach, the Coast Guard is establishing two security zones covering these areas. The security zones are necessary to prevent waterside threats and incidents that could impact the safety and security of USSS protectees when present in the area.

Both security zones aid the USSS in controlling the area and preventing actors wishing to cause harm to the functioning of the U.S. Government by attacking persons protected by the USSS. Were such an attack to be attempted or to occur, the societal impacts could be sizable and potentially severe to the Nation's Government. Additionally, the local impacts would be substantial as well. The area could be closed for a significant period as any necessary investigations occur. This regulatory action will greatly decrease the likelihood of these potential impacts. The Coast Guard has no way to quantify the frequency of malfeasant actors or the extent to which this rule will diminish the frequency of their attempted or successful actions. However, we believe that the value of these benefits justify the costs of the regulation.

Regulatory Alternatives Considered

We considered alternatives to the regulatory action to determine if an alternative could accomplish the stated objectives of applicable statutes and could minimize any economic impact on small entities. In developing this rule, the Coast Guard considered the following alternatives:

Alternative 1: No Action/Status Quo

Without this rule, malfeasant actors could have unfettered access to locations near persons protected by USSS. We believe that this unfettered access presents an unacceptable security risk to the United States. As such, we rejected this alternative.

Alternative 2: Do Not Permit any Traffic Inside the Security Zone

The Coast Guard considered closing the security zone to traffic entirely, which would have had the added cost of making it impossible to fully transit the canal. We rejected this alternative because there are potentially over 200 recreational boaters a day transiting the security zones in the summer. These boaters would lose their ability to have recreational access of the waterway and any enjoyment that provides them. Additionally, 31 homes with boat slips and a marina with 30 spots are inaccessible without transiting the security zones. These homes, despite existing on the canal with a dock, would be unable to use the waterway. Consequently, we rejected this alternative because the costs would be too high.

Alternative 3: Allow Vessels To Transit the Waterway, but Do Not Permit Vessels To Transit During the Movement of Certain Individuals Protected by USSS

This is our preferred alternative and discussed throughout the regulatory analysis. We believe it balances the costs to public in the form of quick conversations with transiting recreational vessels and the occasional inconvenience of a temporary canal closure due to USSS protectees moving around the area with the benefits of ensuring the security of these protected persons.

B. Impact on Small Entities

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic effect 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 people.

As discussed above, the affected population is entirely recreational. As a result, the individuals directly regulated by this rule are not small entities as defined by the Regulatory Flexibility Act. Based on this analysis, we found this rulemaking will not affect a substantial number of small entities.

Therefore, 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. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under Section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please 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 two security zones for the protection of USSS protectees while present in the vicinity of Rehoboth Beach, 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

1. The authority citation for part 165 continues 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.

2. Add § 165.561 to read as follows:.