[Federal Register: July 7, 2004 (Volume 69, Number 129)]
[Rules and Regulations]
[Page 40768-40770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy04-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-04-067]
RIN 1625-AA87 (Formerly 1625-AA00)
Security Zone; Captain of the Port Hampton Roads Zone, Hampton
Roads, VA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is 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 mitigate potential
terrorist acts and enhance the public and maritime safety and security.
These security zones prohibit entry into or movement within 500-yards
of passenger vessels and vessels carrying CDC unless traveling at the
minimum speed to navigate safely. No vessel or person may approach
within 100 yards of a passenger vessel or vessel carrying CDC unless
authorized by the COPT Hampton Roads or his or her designated
representative.
DATES: This rule is effective July 7, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD05-04-067 and are available for inspection or
copying at Coast Guard 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, Chief of Waterways
Management, USCG Marine Safety Office Hampton Roads, at (757) 668-5590.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 4, 2004, we published a notice of proposed rulemaking (NPRM)
entitled, ``Security Zone; Captain of the Port Hampton Roads Zone,'' in
the Federal Register (69 FR 24549). We received no letters commenting
on the proposed rule. No public meeting was requested, and none was
held.
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. Upon implementation of this rule,
the Captain of the Port will have increased ability to provide for the
safety and security of passenger vessels and vessels carrying Certain
Dangerous Cargo (CDC). Given the urgent need to improve maritime and
homeland security measures, this rule should be made effective as soon
as possible.
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 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 Comments and Changes
No comments were received on the notice of proposed rulemaking. No
changes have been made to the regulatory text.
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).
We expect the economic impact of this 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.
[[Page 40769]]
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
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 a passenger vessel or a vessel that is
carrying CDC. We received no comments on the impact of this rule on
small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking.
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 would 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 effect 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 M16475.1D,
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. This rule establishes 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.
0
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
0
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.
0
2. Add Sec. 165.503 to read as follows:
[[Page 40770]]
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 or anchored vessel
will be enforced by a law enforcement vessel. A security zone in effect
around a moored vessel will be enforced by a law enforcement agent
shoreside, 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: June 28, 2004.
Robert R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 04-15415 Filed 7-6-04; 8:45 am]
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