[Federal Register: May 4, 2004 (Volume 69, Number 86)]
[Proposed Rules]
[Page 24549-24552]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my04-15]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-04-067]
RIN 1625-AA00
Security Zone; Captain of the Port Hampton Roads Zone
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes establishing security zones around
passenger vessels and vessels carrying Certain Dangerous Cargo (CDC)
while they are in the navigable waters of the Captain of the Port
(COTP) Hampton Roads zone. These security zones would mitigate
potential terrorist acts and would enhance the public and maritime
safety and security. These proposed security zones would prohibit entry
into or movement within 100-yards of passenger vessels and vessels
carrying CDC.
DATES: Comments and related material must reach the Coast Guard on or
before June 3, 2004.
[[Page 24550]]
ADDRESSES: You may mail comments and related material to the Coast
Guard Marine Safety Office Hampton Roads, 200 Granby Street, Suite 700,
Norfolk, Virginia 23510. The Waterways Management Branch of the Marine
Safety Office 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 USCG
Marine Safety Office Hampton Roads between 9:30 a.m. and 2 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LT Mike Dolan, Chief of Waterways
Management, USCG Marine Safety Office Hampton Roads, at (757) 668-5590.
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-
067), 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. You may submit a
request for a meeting by writing to Commanding Officer, U.S. Coast
Guard Marine Safety Office Hampton Roads at the address under ADDRESSES
explaining why one would be beneficial. If we determine that a public
hearing 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
Terrorist attacks on September 11, 2001, inflicted catastrophic
human casualties and property damage. These attacks highlighted
terrorists' desire and ability to utilize multiple means in different
geographic areas to successfully carry out their mission.
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. The October 2002 attack on a tank vessel, MV LIMBURG,
off the coast of Yemen and the prior attack on the USS COLE demonstrate
the maritime terrorism threat. These attacks manifest 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) that the security of the U.S. is endangered by the September, 11,
2001 attacks and that such disturbances continue to endanger the
international relations of the United States. See also 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).
The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised
U.S. shipping interests to maintain a heightened state of alert against
possible terrorist attacks. MARAD more recently issued Advisory 03-06
informing operators of maritime interests of increased threat
possibilities to vessels and facilities and a higher risk of terrorist
attack to the transportation community in the United States.
The ongoing hostilities in Afghanistan and Iraq have made it
prudent for U.S. ports and waterways 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.
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. The security zones are established around all
passenger vessels or vessels carrying CDC that are anchored, moored, or
underway within the Captain of the Port Hampton Roads zone. A security
zone is a tool available to the Coast Guard that may be used to control
vessel traffic operating in the vicinity of passenger vessels and
vessels carrying CDC.
Discussion of Proposed Rule
The Coast Guard proposes to establish a 500-yard security zone
around passenger vessels and vessels carrying CDC while they are in the
COTP Hampton Roads zone, as defined in 33 CFR 3.25-10.
The security zone would assist the Coast Guard by preventing other
vessels or persons from engaging in terrorist actions against these
vessels by controlling the movement of persons and other vessels from
the surface to the bottom of the water in a 500-yard radius around
these vessels. Vessels traveling within 500 yards of the subject
vessels would be required to slow to the minimum safe speed that would
allow them to navigate safely and avoid a collision, allision, or
grounding. All vessels and persons would be prohibited from entering
within 100 yards of the subject vessels without permission from the
COTP Hampton Roads or his or her designated representative.
The Coast Guard believes the establishment of these security zones
is necessary for the following reasons:
1. Passenger Vessels. These are vessels of at least 100 gross tons
defined as a passenger vessel in 46 CFR 70.10-1, which specifies the
number of passengers-for-hire for both international and other voyages.
The establishment of a security zone would increase the protection
afforded to these vessels and their passengers.
2. Vessels Carrying CDC. CDC is defined in 33 CFR 160.204. These
cargoes include division 1.1 and 1.2 explosives, permitted oxidizing
material or blasting agents, highway route controlled or fissile
radioactive material, poisonous gases, and certain other toxic or
volatile materials. By the nature of these materials, an explosion or
release of this type of cargo could have serious impact on the general
public.
The COTP would notify the maritime and general public by marine
information broadcast of the periods during which individual security
zones would be enforced. While in effect around a moving vessel, each
zone would be enforced by law enforcement agency vessels. While in
effect around a moored vessel, each zone would be enforced by a
designated law enforcement agent shoreside or by a law enforcement
agency vessel waterside. The COTP may enlist the aid and cooperation of
any Federal, state, county, or municipal law enforcement agency to
assist in the enforcement of the regulation.
[[Page 24551]]
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 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 COTP Hampton
Roads or his 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 proposed rule would affect the following
entities, some of which might be small entities: The owners or
operators of vessels intending to transit in the security zone near a
passenger vessel or a vessel that is carrying CDC.
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 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact Lieutenant Mike
Dolan at Coast Guard Marine Safety Office Hampton Roads, Waterways
Management Branch, at telephone number (757) 668-5590.
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 an
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. 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 proposed 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 this rule establishes a security zone.
A draft ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES. Comments on this section
[[Page 24552]]
will be considered before we make a final decision on whether the rule
should be categorically excluded from further environmental review.
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. 165.503 to read as follows:
Sec. 165.503 Security Zone; Captain of the Port Hampton Roads Zone.
(a) Definitions. As used in this section--
Certain dangerous cargo or CDC means a material defined as CDC in
33 CFR 160.204.
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 (COTP), Hampton Roads, Virginia
to act on his or her behalf.
Passenger vessel means a vessel defined as a passenger vessel in 46
CFR part 70.
(b) Location. All navigable waters of the Captain of the Port
Hampton Roads zone (defined in 33 CFR 3.25-10) within 500 yards around
a passenger vessel or vessel carrying a CDC, while the passenger vessel
or vessel carrying CDC is transiting, moored or anchored.
(c) Regulations. (1) No vessel may approach within 500 yards of a
passenger vessel or vessel carrying a CDC within the Captain of the
Port Hampton Roads zone, unless traveling at the minimum speed
necessary to navigate safely.
(2) Under Sec. 165.33, no vessel or person may approach within 100
yards of a passenger vessel or vessel carrying a CDC within the Captain
of the Port Hampton Roads zone, unless authorized by the COTP Hampton
Roads or his or her designated representative.
(3) The COTP Hampton Roads 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.
(4) A security zone in effect around a moving vessel will be
enforced by a law enforcement vessel. A security zone in effect around
a moored vessel will be enforced either by a law enforcement agent
shoreside or by a law enforcement vessel waterside, or both.
(5) Persons desiring to transit the area of the security zone
within 100 yards of a passenger vessel or vessel carrying a CDC must
contact the COTP Hampton Roads on VHF-FM channel 16 (156.8 MHz) or
telephone number (757) 668-5555 or (757) 484-8192 to seek permission to
transit the area. All persons and vessels must comply with the
instructions of the COTP or the COTP's designated representative.
(d) Enforcement. The COTP will enforce these zones and may enlist
the aid and cooperation of any Federal, state, county, or municipal law
enforcement agency to assist in the enforcement of the regulation.
Dated: April 15, 2004.
Robert R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 04-10115 Filed 5-3-04; 8:45 am]
BILLING CODE 4910-15-P