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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [CGD05-04-011] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule. 

# SUMMARY:

The Coast Guard is establishing a temporary security zone encompassing all waters surrounding P/V MAASDAM, to ensure the security of the vessel during inbound and outbound transits in the Port of Hampton Roads, and while the vessel is berthed at Nauticus International Terminal. The security zone will extend in a 500-yard radius around P/V MAASDAM and require that all vessels transiting within 500 yards of P/V MAASDAM operate only at the minimum speed necessary to maintain course. No vessels are allowed within 100 yards of P/V MAASDAM without authorization by the Captain of the Port, Hampton Roads, or his designated representative. 

# DATES:

This rule is effective from January 20, 2004, to April 24, 2004. 

# ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD05-04-011 and are available for inspection or copying at USCG Marine Safety Office Hampton Roads, 200 Granby Street, Suite 700, Norfolk, Virginia, 23510, between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

LT Mike Dolan, project officer, USCG Marine Safety Office Hampton Roads, at (757) 668-5590. 

# SUPPLEMENTARY INFORMATION:

## Regulatory Information 

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The Holland America cruise line only recently finalized arrangements with Federal and local agencies to allow the P/V MAASDAM to conduct regular passenger cruises from Norfolk. As a result, the Coast Guard received the final schedule for the MAASDAM in January 2004. Coast Guard policy dictates that the Captain of the Port will provide for the security of high-capacity passenger vessels, and this security zone is necessary for that purpose. 

                    Publishing an NPRM, which would incorporate a comment period before a final rule was issued, would be contrary to the public interest since immediate action is needed to protect this vessel from potential security threats. For similar reasons, 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**                    .                 

## Background and Purpose 

Following terrorist attacks on the United States in September 2001, there is a heightened awareness that vessels or persons could launch subversive activity against passenger ships. These regulations are necessary to protect the vessel, its passengers, and its crew from these potential threats. The Coast Guard is establishing a temporary security zone to ensure the vessel's safe inbound and outbound transits, and to protect the vessel while moored at Nauticus International Terminal. 

## Discussion of Rule 

The Coast Guard is establishing temporary security zones to ensure safe transits and port calls for the P/V MAASDAM. The security zones will be activated while the P/V MAASDAM transits in the Port of Hampton Roads, and while it is berthed at Nauticus International Terminal. This rule is effective from January 20, 2004, to April 24, 2004. The security zone will extend in a 500-yard radius around P/V MAASDAM. All vessels within 500 yards must operate only at the minimum speed necessary to maintain course. No vessels are allowed within 100 yards of P/V MAASDAM without authorization by the Captain of the Port, Hampton Roads, or his designated representative. This rule will provide for increased security of the vessel and other vessels transiting in the area, and will allow the uninterrupted flow of commerce in the Port of Hampton Roads. Public notifications will be made prior to the transit via marine information broadcasts. 

## Regulatory Evaluation 

                    This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory                           ( print page 6159)                        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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).                 

Although this rule restricts access to the regulated area, the effect of this rule will not be significant because: (i) The COTP may authorize access to the security zone; (ii) the security zones will be in effect for a limited duration; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. 

## 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” include 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 may be small entities: The owners and operators of vessels intending to transit or anchor within a 500-yard radius of P/V MAASDAM as she transits the Port of Hampton Roads, and while she is berthed at the Nauticus International Terminal. 

## Assistance for Small Entities 

                    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under                     **FOR FURTHER INFORMATION CONTACT**                     for assistance in understanding this rule.                 

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 an expenditure, we do 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 analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it creates temporary security zones. A final “Environmental Analysis Check List” and a final “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, subpart F, 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: 50 U.S.C 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 
      ( print page 6160)    
2. Add temporary § 165.T05-011, to read as follows: 

§ 165.T05-011 

                            (a)                             *Location.*                             The following area is a security zone: All waters within a 500-yard radius around the P/V MAASDAM, while the vessel transits through the Captain of the Port Hampton Roads zone, and while berthed at Nauticus International Terminal.                         

                            (b)                             *Definitions:*                             The                             *designated representative of the Captain of the Port*                             is any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Hampton Roads, Virginia to act on his behalf.                         

                            (c)                             *Contact information.*                             The Captain of the Port, Hampton Roads and the Command Duty Officer at the Marine Safety Office Hampton Roads, Norfolk, Virginia, can be contacted at telephone Number (757) 668-5555 or (757) 484-8192. The Coast Guard vessels enforcing the security zone can be contacted on VHF-FM channels 13 and 16.                         

                            (d)                             *Regulation:*                             (1) Under § 165.33, vessels are prohibited from entering within 100 yards of the P/V MAASDAM, unless authorized by the Captain of the Port, Hampton Roads, Virginia, or his designated representatives. Vessels within 500 yards of the P/V MAASDAM must operate only at the minimum speed necessary to maintain course.                         

(2) The operator of any vessel in any part of this security zone must:

(i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign. 

(ii) Proceed as directed by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign. 

(iii) Operate at minimum speed within a 500-yard radius of P/V MAASDAM. 

                            (e)                             *Effective period:*                             This section is effective from January 20, 2004, to April 24, 2004.                         

Dated: January 16, 2004. 

Robert R. O'Brien, Jr., 

Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads. 

[FR Doc. 04-2742 Filed 2-9-04; 8:45 am] 

BILLING CODE 4910-15-U