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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [COTP Charleston 04-145]
          - RIN 1625-AA87

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule; request for comments.

# SUMMARY:

                        The Coast Guard is establishing a temporary fixed security zone in the waters from the Don Holt, I-526 Bridge, on the Cooper River to the entrance of Foster Creek on the Cooper River. This security zone is necessary to protect the public and port from potential subversive acts during port                               ( print page 1188)                            embarkation operations. Vessels are prohibited from entering, transiting, anchoring, mooring, or loitering within this zone, unless specifically authorized by the Captain of the Port, Charleston, South Carolina, or the Captain of the Port's designated representative.                    

# DATES:

This rule is effective from 8 a.m. on December 16, 2004, through 8 a.m. on June 1, 2005.

# ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket COTP Charleston 04-145 and are available for inspection or copying at Marine Safety Office Charleston, between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

# FOR FURTHER INFORMATION CONTACT:

LTJG Matthew Meskun, Coast Guard Marine Safety Office Charleston, at (843) 720-3272.

# 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. Publishing an NPRM would be contrary to public safety interests and national security. These regulations are needed to protect the public, the ports and waterways and the national security of the United States from potential subversive acts against vessels, port facilities and infrastructure during port embarkation operations. For the security concerns noted, it is in the public interest to have these regulations in effect without publishing an NPRM. Notifications will be made via marine information broadcasts to inform the public about the existence of this security zone.

                    For the same reasons, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the                     **Federal Register**                    .                

## 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 (COTP Charleston-04-145), 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 they 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 rule in view of them.                

## Background and Purpose

Based on the September 11, 2001, terrorist attacks on the World Trade Center and Pentagon, there is an increased risk that vessels or persons in close proximity to the Port of Charleston, South Carolina, may engage in subversive or terrorist acts against military installations or operations occurring within the security zone. The security zone is necessary to protect the safety of life and property on navigable waters and prevent potential terrorist threats aimed at military installations during strategic embarkation operations. The temporary security zone will encompass all waters from the Don Holt I-526 Bridge over the Cooper River to the entrance of Foster Creek on the Cooper River.

## Discussion of Rule

The Charleston Captain of the Port will enforce the security zone on the Cooper River from time to time during the effective period in the interest of national security. Vessels carrying cargo for the Department of Defense need a level of security which requires the Cooper River to be closed to all traffic for short periods of time. River closures will be infrequent and for relatively short periods of time. Mariners will be given as much advance notice as possible. Marine Safety Office Charleston will notify the maritime community of periods during which this security zone will be enforced via a broadcast notice to mariners on VHF Marine Band Radio, Channel 16 (156.8 MHz), Marine Safety Information Bulletins, or by having those security assets enforcing the zone inform vessel traffic as necessary.

## Regulatory Evaluation

This 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).

The limited geographic area impacted by the security zone will not restrict the movement or routine operation of commercial or recreational vessels through the Port of Charleston. Also, an individual may request a waiver of these regulations from the Coast Guard Captain of the Port or the Captain of the Port's designated representative.

## 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” 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 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 or operators of vessels intending to transit a portion of the Cooper River while the security zone is in effect.

This security zone will not have a significant economic impact on a substantial number of small entities because it will only be enforced for short periods of time on an infrequent basis. Advanced notice will be provided to mariners in order to accommodate for any enforcement of the security zone.

## Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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                           ( print page 1189)                        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 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. 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

## Environment

We have analyzed this rule under Commandant Instruction M16475.lD, 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. This rule fits within paragraph (34)(g) because it is a security zone. 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.

# 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, 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. A new temporary section 165.T07-100 is added to read as follows: 

§ 165.T07-145 

                            (a)                             *Regulated area.*                             The Coast Guard is establishing a temporary fixed security zone on all waters of the Cooper River, bank-to-bank, from the Don Holt I-526 Bridge to the intersection of Foster Creek at a line on 32 degrees 58 minutes North Latitude.                        

                            (b)                             *Regulations.*                             Vessels or persons are prohibited from entering, transiting, mooring, anchoring, or loitering within the Regulated Area unless authorized by the Captain of the Port Charleston, South Carolina or his or her designated representative. Persons desiring to transit the area of the security zone may contact the Captain of the Port via VHF-FM channel 16 or by telephone (843) 720-3240 to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representative.                        

                            (c)                             *Effective period.*                             This section is effective from 8 a.m. on December 16, 2004, until 8 a.m. on June 1, 2005.                        

Dated: December 16, 2004.

David Murk,

Lieutenant Commander, U.S. Coast Guard, Acting Captain of the Port, Charleston, South Carolina.

[FR Doc. 05-231 Filed 1-5-05; 8:45 am]

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