[Federal Register: September 22, 2004 (Volume 69, Number 183)]
[Rules and Regulations]
[Page 56695-56697]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se04-13]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-04-047]
RIN 1625-AA00
Security Zone; Atlantic Ocean, Chesapeake & Delaware Canal,
Delaware Bay, Delaware River and Its Tributaries
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a security zone that will
require all vessels in a 500-yard radius around escorted passenger
vessels to operate at the minimum speed necessary to navigate safely
and prohibit any vessels from entering within 100 yards of escorted
passenger vessels in the Captain of the Port (COTP) Philadelphia. This
security zone is needed to ensure public safety and enhance maritime
security. The zone will ensure the security of the vessels during
transit in the COTP Philadelphia zone.
DATES: This rule is effective September 10, 2004.
ADDRESSES: Comments and related material received from the public, as
well as documents indicated in this preamble as being available in the
docket, are part of docket CGD05-04-047 and are available for
inspection or copying at Coast Guard Marine Safety Office Philadelphia,
One Washington Avenue, Philadelphia, Pennsylvania 19147 between 8 a.m.
and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Kevin Sligh or
Ensign Jill Munsch, Coast Guard Marine Safety Office/Group
Philadelphia, at (215) 271-4889.
SUPPLEMENTARY INFORMATION:
Regulatory History
On June 28, 2004 we published a notice of proposed rulemaking
(NPRM) in the Federal Register entitled ``Security Zone; Atlantic
Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and
its tributaries'' in the Federal Register (69 FR 36032). We received no
letters commenting on the proposed rule.
In addition, a temporary final rule with the same title was
published in the Federal Register on April 13, 2004 (69 FR 19326). That
temporary final rule
[[Page 56696]]
established a security zone around escorted passenger vessels, but that
rule was only effective through September 1, 2004.
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. The temporary final rule has
expired. Delaying the effective date of this rule would be contrary to
public interest because immediate action is needed to protect against
potential hazards and threats to passenger vessels.
Background and Purpose
This rule is necessary because hostile entities continue to operate
with the intent to harm U.S. shipping interests. The President has
continued the national emergencies he declared following the September
11, 2001 terrorist attacks. 67 FR 58317 ((Sept. 13, 2002) (continuing
national emergency with respect to terrorist attacks)); 67 FR 59447
((Sept. 20, 2002) continuing national emergency with respect to persons
who commit, threaten to commit or support terrorism)); 68 FR 55189
((Sept. 22, 2003 (continuing national emergency with respect to persons
who commit, threaten to commit or support terrorism)).
The U.S. Maritime Administration (MARAD) 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 Coast
Guard is establishing this final rule to ensure vessels transit safely
in the COTP zone Philadelphia, Pennsylvania.
Discussion of Comments and Changes
During the public comment period, we received no letters or
comments concerning this zone. We did not make any changes to the
proposed security zone after the comment period.
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. There is ample room for vessels to navigate
around the security zone and the Captain of the Port may allow vessels
to enter the zone on a case-by-case basis with the express permission
of the Captain of the Port of Philadelphia or their 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.
This rule will 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 rule, a security zone will be
activated only when an escorted passenger vessel is in the COTP
Philadelphia zone. Most vessel traffic can pass safely around the
security zone, and maneuver-restricted vessels may seek permission from
the COTP to pass within 100 yards of the vessel. Additionally, the
opportunity to engage in recreational and charter fishing outside the
limits of the security zone will not be disrupted.
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, as none were identified that will be affected by the
final rule.
Vessel traffic counts indicate the waterway users will continue to
have the same access to the waterway as in the past, with the exception
of a small area surrounding transiting passenger vessels in the Captain
of the Port Philadelphia zone.
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 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 Junior Grade Kevin
Sligh or Ensign Jill Munsch, Coast Guard Marine Safety Office/Group
Philadelphia, at (215) 271-4889.
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 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 Security Risks. This
rule is not an economically significant rule and does not create an
environmental risk to health or risk to security 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 will 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
[[Page 56697]]
invite your comments on how this rule might impact tribal governments,
even if that impact may not constitute a ``tribal implication'' under
the Order.
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 Commandant Instruction M16475.1D,
from further environmental documentation.
We have considered the security zone access constraints around
passenger vessels and have determined the public can safely transit the
affected waterways outside the security zone, without significant
impact on the environment.
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. 165.511.
Sec. 165.511 Security Zone; Atlantic Ocean, Chesapeake & Delaware
Canal, Delaware Bay, Delaware River and its tributaries.
(a) Location. A 500-yard radius around escorted passenger vessels
in the Captain of the Port, Philadelphia zone as defined in 33 CFR
3.25-05.
(b) Regulations. (1) All persons are required to comply with the
general regulations governing security zones in Sec. 165.33 of this
part.
(2) All persons or vessels operating at the minimum safe speed
necessary to maintain navigation may transit within 500 yards of an
escorted passenger vessel without the permission of the Captain of the
Port Philadelphia, PA or designated representative while the escorted
passenger vessel is in the Captain of the Port Philadelphia zone.
(3) No person or vessel may transit or remain within 100 yards of
an escorted passenger vessel without the permission of the Captain of
the Port Philadelphia, PA or designated representative while the
passenger vessel is in the Captain of the Port Philadelphia zone.
(4) Any person or vessel authorized to enter the security zone must
operate in strict conformance with any directions given by the Captain
of the Port Philadelphia, PA or designated representative and leave the
security zone immediately if the Captain of the Port Philadelphia, PA
or designated representative so orders.
(5) When an escorted passenger vessel approaches within 100 yards
of any vessel that is moored or anchored, the stationary vessel must
stay moored or anchored while it remains within 100 yards of the
passenger vessel unless it is either ordered by or given permission by
the Captain of the Port, Philadelphia or designated representative to
do otherwise.
(6) The Coast Guard designated representative enforcing this
section can be contacted on VHF Marine Band Radio, channels 13 and 16.
The Captain of the Port can be contacted at (215) 271-4807.
(c) Maneuver-restricted vessels. When conditions permit, the
Captain of the Port or designated representative should:
(1) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to pass within the 100 yards of
the passenger vessel in order to ensure safe passage in accordance with
the Navigation Rules as seen in 33 CFR chapter I, subchapters D and E;
and
(2) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver that must transit via a
navigable channel or waterway to pass within 100 yards of an anchored
passenger vessel.
(d) Definitions. As used in this section--
Captain of the Port means the Commanding Officer of the Coast Guard
Marine Safety Office/Group Philadelphia or any Coast Guard
commissioned, warrant, or petty officer who has been authorized by the
Captain of the Port to act as a designated representative on his
behalf.
Escort means assets (surface or air) with the Coast Guard insignia
that accompany and protect the escorted vessel, armed with crew-served
weapons that are manned and ready.
Passenger Vessels means vessels greater than 100 feet in length,
over 100 gross tons that are authorized to carry 500 or more
passengers, making voyages lasting more than 24 hours, except for
ferries.
Dated: September 10, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port, Philadelphia.
[FR Doc. 04-21245 Filed 9-21-04; 8:45 am]
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