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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [CGD05-04-171] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

                        The Coast Guard proposes establishing permanent moving security zones around escorted vessels while they are in the navigable waters of the Fifth Coast Guard District. The proposed security zones would require all vessels in a 500-yard radius around escorted vessels to operate at the minimum speed necessary to navigate safely and prohibit any vessels from entering within 100 yards of an escorted vessel. These proposed security zones would mitigate                               ( print page 77685)                            potential terrorist acts and enhance public and maritime safety and security.                     

# DATES:

Comments and related material must reach the Coast Guard on or before February 28, 2005. 

# ADDRESSES:

You may mail comments and related material to Fifth Coast Guard District, Marine Safety Division, 431 Crawford Street, Portsmouth, Virginia, 23704. The Fifth District Marine Safety Division maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above mentioned office between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

Lieutenant E.J. Terminella, Fifth Coast Guard District, at (757) 398-7783. 

# SUPPLEMENTARY INFORMATION:

## Request for Comments 

                    We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-04-171), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.                 

## Public Meeting 

                    We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Fifth Coast Guard District at the address under                     **ADDRESSES**                     explaining why one would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the                     **Federal Register**                    .                 

## Background and Purpose 

Due to increased awareness that future terrorist attacks are possible, the Coast Guard, as Lead Federal Agency for maritime homeland security, has determined that the Captain of the Port must have the means to be aware of, detect, deter, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while maintaining our freedoms and sustaining the flow of commerce. Terrorists have demonstrated both desire and ability to utilize multiple means in different geographic areas to successfully carry out their terrorist missions. 

During the past 3 years, the Federal Bureau of Investigation has issued several advisories to the public concerning the potential for terrorist attacks within the United States. The October 2002 attack on a tank vessel, M/V LIMBURG, off the coast of Yemen and the prior attack on the USS COLE demonstrate a continuing threat to U.S. maritime assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) and Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). Furthermore, the ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. port and waterway users to be on a higher state of alert because the Al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. 

In addition to escorting vessels, a security zone is a tool available to the Coast Guard that may be used to control maritime traffic operating in the vicinity of vessels, which the Coast Guard has determined need additional security measures during their transit. The COTP would use this regulation to establish a security zone around vessels to safeguard the port, harbors or waterfront facilities. Vessels that may require an escort are vessels of national security interest, a passenger vessel, vessels carrying certain dangerous or hazardous cargo. These proposed security zones around all escorted vessels during transit and while the escorted vessels are anchored, moored, or underway within the Fifth Coast Guard District will help ensure the safety of the ports and vessels in the navigable waters of the Fifth Coast Guard District. 

## Discussion of Proposed Rule 

This rule proposes placing a 500-yard security zone around all vessels that are being escorted by a Coast Guard surface, air or Coast Guard Auxiliary asset, or by a local law enforcement agency during their transit through the Fifth Coast Guard District. Only vessels traveling at the minimum safe speed may transit in the 500-yard zone and no persons or vessels will be allowed within 100 yards of any escorted vessel, without the permission of the District Commander, Captain of the Port or their designated representatives, while the vessel is within the Fifth Coast Guard District. Persons desiring to transit within 100 yards of an escorted vessel in the Fifth Coast Guard District must contact the local Captain of the Port on VHF channel 16 (156.800 MHz) or VHF channel 13 (156.650 MHz) and obtain permission to transit within 100 yards of the escorted vessel. The boundaries of the Fifth Coast Guard District are defined in 33 CFR 3.25-1. And the boundaries of the four COTP zones are defined in § 3.25-05, Philadelphia Captain of the Port Zone; § 3.25-10, Hampton Roads Marine Inspection Zone and Captain of the Port Zone; § 3.25-15, Baltimore Captain of the Port Zone, and § 3.25-20, Wilmington Marine Inspection Zone and Captain of the Port Zone. 

All persons within 500-yards of an escorted vessel would be required to operate their vessels at the minimum safe speed necessary to maintain navigation in accordance with the Navigation Rules in 33 CFR Chapter I, subchapters D and E. Stationary vessels that are moored or anchored must remain moored or anchored when an escorted vessel approaches within 100 yards of the stationary vessel. Additionally, vessels restricted in their ability to maneuver may request permission from the District Commander, Captain of the Port, or a designated representative, to enter within 100 yards of an escorted vessel in order to ensure safe passage in accordance with the Navigation Rules in 33 CFR Chapter I, subparts D and E. 

## Regulatory Evaluation 

This proposed 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). 

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. 

                    This finding is based on the relatively small percentage of ships that would fall                           ( print page 77686)                        within the applicability of the regulation, the relatively small size of the limited access area around each ship, the minimal amount of time that vessels will be restricted in course or speed when the zone is being enforced, and the ease with which vessels may transit around the affected area. In addition, vessels that may need to enter the zones may request permission on a case-by-case basis from the District Commander, Captain of the Port or their designated representatives.                 

## Small Entities 

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. 

This rule affects the following entities, some of which might be small entities: The owners or operators of vessels intending to transit in the security zone near an escorted vessel. 

This proposed rule would not have a significant impact on a substantial number of small entities because the restrictions affect only a limited area. Although this is a permanent security zone, the rule is effective only when vessels are escorted and vessel traffic could pass safely around the security zone. Additionally, the opportunity to engage in recreational and charter fishing outside the limits of the security zone will not be disrupted. 

                    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.                 

## Assistance for Small Entities 

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant E.J. Terminella, Coast Guard Fifth Coast Guard District, at (757) 398-7783. 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 proposed rule would call 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

## Taking of Private Property 

This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. 

## Indian Tribal Governments 

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order. 

## Energy Effects 

We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 

## Environment 

                    We have analyzed this proposed rule under Commandant Instruction M16475. lD, which guides the Coast Guard in complying with the National                           ( print page 77687)                        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. Under figure 2-1, paragraph (34)(g) of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. If you disagree with this categorical exclusion, comments on this section will be considered.                 

# 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 proposes to amend 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; 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. 

2. Add § 165.518 to read as follows: 

§ 165.518 

                            (a)                             *Definitions.*                             As used in this section—                         

*Designated Representative*                             means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the District Commander or local Captain of the Port (COTP), as defined in 33 CFR part 3, subpart 3.25, to act on his or her behalf.                         

*Escorted vessel*                             means a vessel that is accompanied by one or more Coast Guard assets or Federal, State or local law enforcement agency assets as listed below:                         

(1) Coast Guard surface or air asset displaying the Coast Guard insignia. 

(2) Coast Guard Auxiliary surface asset displaying the Coast Guard Auxiliary insignia. 

(3) State and/or local law enforcement asset displaying the applicable agency markings and or equipment associated with the agency. 

*State and/or local law enforcement officers*                             means any State or local government law enforcement officer who has authority to enforce State criminal laws.                         

                            (b)                             *Location.*                             The following area is a security zone: 500-yard radius around escorted vessels in the navigable waters of the Fifth Coast Guard District as defined in 33 CFR 3.25-1, from surface to bottom.                         

                            (c)                             *Regulations.*                             (1) No vessel may approach within 500 yards of an escorted vessel within the navigable waters of the Fifth Coast Guard District, unless traveling at the minimum speed necessary to navigate safely.                         

(2) No vessel may enter within a 100-yard radius of an escorted vessel within the navigable waters of the Fifth Coast Guard District, without approval from the District Commander, Captain of the Port or their designated representatives. 

(3) Moored or anchored vessels, which are overtaken by a moving zone, must remain stationary at their location until the escorted vessel maneuvers at least 500 yards past. 

(4) Vessels restricted in their ability to maneuver may request permission of the District Commander, Captain of the Port or designated representative to enter the security zone in order to ensure safe passage in accordance with the Navigation Rules in 33 CFR chapter I, subparts D and E. 

(5) The local COTP may notify the maritime and general public by marine information broadcast of the periods during which individual security zones have been activated by providing notice in accordance with 33 CFR 165.7. 

(6) When moored, a security zone around an escorted vessel may also be enforced by Coast Guard, State or local law enforcement personnel shoreside. 

(7) Persons desiring to transit within 100 yards of an escorted vessel in the Fifth Coast Guard District must contact the local Captain of the Port on VHF channel 16 (156.800 MHz), VHF channel 13 (156.650 MHz) or at telephone numbers: 

Philadelphia: (215) 271-4807, 

Baltimore: (410) 576-2693, 

Hampton Roads: (757) 668-5555 or (757) 484-8192, or 

Wilmington: (910) 772-2200 or (910) 254-1500. 

(8) If permission is granted to transit within 100 yards of an escorted vessel, all persons and vessels must comply with the instructions of the District Commander, Captain of the Port or his or her designated representative. 

Dated: December 14, 2004. 

S. Brice-O'Hara, 

Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. 

[FR Doc. 04-28228 Filed 12-27-04; 8:45 am] 

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