[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Proposed Rules]
[Pages 77684-77687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28228]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-171]
RIN 1625-AA00


Security Zone; Fifth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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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

[[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 Sec.  3.25-05, 
Philadelphia Captain of the Port Zone; Sec.  3.25-10, Hampton Roads 
Marine Inspection Zone and Captain of the Port Zone; Sec.  3.25-15, 
Baltimore Captain of the Port Zone, and Sec.  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

[[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

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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 Sec.  165.518 to read as follows:


Sec.  165.518  Security Zone; Waters of the Fifth Coast Guard District.

    (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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