[Federal Register: July 25, 2005 (Volume 70, Number 141)]
[Rules and Regulations]
[Page 42493-42495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jy05-5]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-05-072]
RIN 1625-AA00
Safety and Security Zones: Liquefied Hazardous Gas Vessel,
Liquefied Hazardous Gas Facility and Designated Vessel Transits, New
York Marine Inspection Zone and Captain of the Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is temporarily suspending a portion of the
regulation relating to security zones around Designated Vessels within
the Captain of the Port New York Zone, and adding a temporary section
to allow the Captain of the Port to protect Mass Transit Ferries and
other vessels that are certificated to carry 150 or more passengers as
Designated Vessels. This action is necessary to safeguard these vessels
from sabotage, subversive acts, or other threats. This rule prohibits
entry into or movement within these security zones without permission
from the Captain of the Port of New York.
DATES: This rule is effective from July 8, 2005 until January 8, 2006.
ADDRESSES: Documents as indicated in this preamble are available for
inspection and copying at Coast Guard Sector New York, 212 Coast Guard
Drive, room 301, Staten Island, New York 10305, between 8 a.m. and 3
p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Commander Brian Willis, Waterways
Management Division, Coast Guard Sector New York, at (718) 354-4220.
SUPPLEMENTARY INFORMATION:
Regulatory Information
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation, and good cause exists for making
it effective less than 30 days after Federal Register publication. Due
to the potential threats of terrorist attacks against public mass
transit systems and other means of conveyance, as illustrated by the
attacks in London, UK on July 7, 2005, this rulemaking is urgently
necessary to protect mass transit vessels and other vessels
certificated to carry 150 passengers or more, regional infrastructure,
and the public from waterborne attack and subversive activity. Any
delay in the establishment and enforcement of this regulation's
effective date would be clearly contrary to public interest since
immediate action is needed to protect the public and the United States'
interests against similar acts of terrorism.
Background and Purpose
On July 7, 2005 the mass transit system in London, UK was
devastated by simultaneous explosive attacks resulting in numerous
fatalities and injuries. These attacks illustrate the potential
vulnerability of mass transit systems and other means of passenger
conveyance within the United States, including those maritime transit
systems such as Mass Transit Ferries and other vessels certificated to
carry 150 passengers or more. These acts were unforeseen and
accomplished without warning. These security zones are needed to
protect and safeguard the public, vessels, and vessel crews from
consequences of attacks of similar nature.
Discussion of Rule
The Coast Guard is temporarily suspending the regulations contained
in 33 CFR 165.160 relating to Designated Vessels found in paragraphs
(a)(2) and (b), replacing them with a temporary regulation containing a
revised definition of ``Designated Vessel.'' The temporary section will
decrease the number of passengers a vessel must be certificated to
carry to qualify for Designated Vessel status from 500 to 150 and
increases the types of vessels that the Captain of the Port (COTP) may
effectuate in the security zone. This will allow the COTP to establish
a security zone on all waters within 100 yards of any Mass Transit
Ferry or any other passenger vessel certificated to carry 150 or more
passengers that operates within the New York Captain of the Port Zone.
Requirements from paragraph 165.160(c) will still apply to the
temporary rule. All other requirements and stipulations contained in
paragraphs (a)(1) and (c) of 33 CFR 165.160 will remain unchanged and
in full effect.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory
[[Page 42494]]
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 regulation may have some impact on the
public, but these potential impacts will be minimized for the following
reasons: the safety and security zones are only effective when the
Captain of the Port so directs and, when effective, vessels may, at all
times, transit in all areas around the Designated Vessel zones thus
having a minimal impact upon navigability of the waterway.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will 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 may affect the following entities, some of which
may be small entities: the owners or operators of vessels intending to
transit within 100 yards of a vessel certificated to carry more than
150 passengers.
For the reasons outlined in the Regulatory Evaluation section
above, this rule will not have a significant impact on a substantial
number of small entities.
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 subsection 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard
wants to assist small entities in understanding this rule so that they
can better evaluate its effects on them and participate in the
rulemaking. If this rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please call
Commander Brian Willis, Waterways Management Division, at (718) 354-
4220.
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 will 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 would not concern 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 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.
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. 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.
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.
[[Page 42495]]
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 proposed rule fits paragraph 34(g) as
it suspends a portion of an existing safety and security zone and adds
a temporary safety and security zone.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' will be available in the docket
where indicated under ADDRESSES.
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 and 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.
Sec. 165.160 [Amended]
0
2. Suspend paragraphs(a)(2) and (b) within Sec. 165.160 from July 8,
2005 to January 8, 2006.
0
3. Add temporary Sec. 165.T01-072 from July 8, 2005 to January 8, 2006
to read as follows:
Sec. 165.T01-072 Safety and Security Zone: Designated Vessels, New
York Captain of the Port Zone.
(a) Location. The following areas are safety and security zones:
All waters of the New York Marine Inspection Zone and Captain of the
Port Zone within a 100-yard radius of any Designated Vessels.
(b) Designated Vessels (DVs). For the purposes of this section,
Designated Vessels include: Ferries, as defined in 46 CFR 2.10-25, that
are certificated to carry 150 or more passengers; other vessels
certificated to carry 150 or more passengers; vessels carrying
government officials or dignitaries requiring protection by the U.S.
Secret Service, or other Federal, State or local law enforcement
agency; and barges or ships carrying petroleum products, chemicals, or
other hazardous cargo.
(c) Regulations. (1) The general regulations contained in 33 CFR
165.23 and 165.33 apply.
(2) All persons and vessels must comply with the Coast Guard
Captain of the Port or designated on-scene patrol personnel. On-scene
Coast Guard patrol personnel include commissioned, warrant, and petty
officers of the Coast Guard on board Coast Guard, Coast Guard
Auxiliary, and local, state, and federal law enforcement vessels. Upon
being hailed by siren, radio, flashing light or other means from a U.S.
Coast Guard vessel or other vessel with on-scene patrol personnel
aboard, the operator of the vessel shall proceed as directed.
(3) The Captain of the Port will notify the maritime community of
periods during which these zones will be enforced by methods in
accordance with 33 CFR 165.7.
(d) Effective Dates. This rule will be enforced from July 8, 2005
to January 8, 2006.
Dated: July 8, 2005.
Glenn A. Wiltshire,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 05-14588 Filed 7-22-05; 8:45 am]
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