[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Rules and Regulations]
[Page 11549-11551]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-04-171]
RIN 1625-AA87 (Formerly 1625-AA00)
Security Zone; Fifth Coast Guard District
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing permanent moving security
zones around escorted vessels while they are in the navigable waters of
the Fifth Coast Guard District. The security zones require all vessels
in a 500-yard radius around escorted vessels, to operate at the minimum
speed necessary to navigate safely and prohibits any vessels from
entering within 100 yards of an escorted vessel. These security zones
mitigate potential terrorist acts and enhance public and maritime
safety and security.
DATES: This rule is effective April 13, 2005.
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 CGD05-04-171 and are available for inspection or
copying at the Fifth Coast Guard District, Marine Safety Division, 431
Crawford Street, Portsmouth, Virginia, 23704 between 8 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant E.J. Terminella, Fifth
Coast Guard District, at (757) 398-7783.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On December 28, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; Fifth Coast Guard District'' in the
Federal Register (69 FR 77684). We did not receive any letters
commenting on the proposed rule. No public meeting was requested and
none was held.
Background and Purpose
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. Terrorists have demonstrated both desire and ability
to use multiple means in different geographic areas to successfully
carry out their terrorist missions.
During the past 3 years, the Federal Bureau of Investigation has
issued several advisories to the public concerning the potential for
terrorist attacks within the United States. The October 2002 attack on
a tank vessel, M/V LIMBURG, off the coast of Yemen and the prior attack
on the USS COLE demonstrate 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), and 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). Furthermore, the ongoing
hostilities in Afghanistan and Iraq have made it prudent for U.S. port
and waterway users 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.
In addition to escorting vessels, a security zone is a tool
available to the Coast Guard that may be used to control maritime
traffic operating in the vicinity of vessels that the Coast Guard has
determined need additional security measures during their transit. The
District Commander has made a determination that it is necessary to
establish a security zone around vessels that are escorted. This
regulation, which will establish security zones around escorted
vessels, will allow the COTP to safeguard escorted vessels, and reduce
the possibility of a terrorist attack that might kill or injure persons
or damage property in ports, harbors or waterfront facilities. Vessels
that may require an escort are vessels of national security interest,
such as a passenger vessel or a vessel carrying certain dangerous or
hazardous cargo. These security zones around all escorted vessels
during transit and while the escorted vessels are anchored, moored, or
underway within the Fifth Coast Guard District will help ensure the
safety of the ports and vessels in the navigable waters of the Fifth
Coast Guard District.
Discussion of Comments and Changes
No comments were received. For purposes of clarification, however,
we did revise the definition of escorted vessel to expressly exclude
U.S. naval vessels, as defined in Sec. 165.2015. This language was
added to prevent any confusion between these zones and a Naval Vessel
Protective Zone found at 33 CFR 165.2010.
Discussion of Rule
This rule places a 500-yard security zone around all vessels that
are being escorted by a Coast Guard surface, air or Coast Guard
Auxiliary asset, or by a local law enforcement agency during their
transit through the Fifth Coast Guard District. Only vessels traveling
at the minimum safe speed may transit in the 500-yard zone and no
persons or
[[Page 11550]]
vessels are allowed within 100 yards of any escorted vessel, without
the permission of the District Commander, Captain of the Port or their
designated representatives, while the vessel is within the Fifth Coast
Guard District. Persons desiring to transit within 100 yards of an
escorted vessel in the Fifth Coast Guard District must contact the
local Captain of the Port on VHF channel 16 (156.800 MHz) or VHF
channel 13 (156.650 MHz) and obtain permission to transit within 100
yards of the escorted vessel. The boundaries of the Fifth Coast Guard
District are defined in 33 CFR 3.25-1. This includes territorial waters
12 nautical miles from the territorial sea baseline as defined in 33
CFR part 2 subpart B. The boundaries of the four COTP zones within the
Fifth Coast Guard District are defined in Sec. 3.25-05, Philadelphia
Captain of the Port Zone; Sec. 3.25-10, Hampton Roads Marine
Inspection Zone and Captain of the Port Zone; Sec. 3.25-15, Baltimore
Captain of the Port Zone, and Sec. 3.25-20, Wilmington Marine
Inspection Zone and Captain of the Port Zone.
All persons within 500 yards of an escorted vessel are required to
operate their vessels at the minimum safe speed necessary to maintain
navigation in accordance with the Navigation Rules in 33 CFR Chapter I,
subchapters D and E.
Stationary vessels that are moored or anchored must remain moored
or anchored when an escorted vessel approaches within 100 yards of the
stationary vessel. Additionally, vessels restricted in their ability to
maneuver must request permission from the District Commander, Captain
of the Port or a designated representative, to enter within 100 yards
of an escorted vessel in order to ensure safe passage in accordance
with the Navigation Rules in 33 CFR Chapter I, subparts D and E.
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 District Commander, Captain of the Port or their designated
representatives.
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.
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 this rule so that they could better evaluate
its effects on them and participate in the rulemaking process.
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 expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule does 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 might
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. 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
[[Page 11551]]
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. 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. 165.518 to read as follows: Sec. 165.518 Security Zone;
Waters of the Fifth Coast Guard District.
(a) Definitions. As used in this section--
Designated Representative means any U.S. Coast Guard commissioned,
warrant or petty officer who has been authorized by the District
Commander or local Captain of the Port (COTP), as defined in 33 CFR
part 3, subpart 3.25, to act on his or her behalf.
Escorted vessel means a vessel, other than a U.S. naval vessel as
defined in Sec. 165.2015, that is accompanied by one or more Coast
Guard assets or Federal, State or local law enforcement agency assets
as listed below:
(1) Coast Guard surface or air asset displaying the Coast Guard
insignia.
(2) Coast Guard Auxiliary surface asset displaying the Coast Guard
Auxiliary insignia.
(3) State and/or local law enforcement asset displaying the
applicable agency markings and or equipment associated with the agency.
State and/or local law enforcement officers means any State or
local government law enforcement officer who has authority to enforce
State criminal laws.
(b) Location. The following area is a security zone: 500-yard
radius around escorted vessels in the navigable waters of the Fifth
Coast Guard District as defined in 33 CFR 3.25-1, from surface to
bottom.
(c) Regulations. (1) No vessel may approach within 500 yards of an
escorted vessel within the navigable waters of the Fifth Coast Guard
District, unless traveling at the minimum speed necessary to navigate
safely.
(2) No vessel may enter within a 100-yard radius of an escorted
vessel within the navigable waters of the Fifth Coast Guard District,
without approval from the District Commander, Captain of the Port or
their designated representatives.
(3) Moored or anchored vessels, which are overtaken by a moving
zone, must remain stationary at their location until the escorted
vessel maneuvers at least 500 yards past.
(4) Vessels restricted in their ability to maneuver may request
permission of the District Commander, Captain of the Port or designated
representative to enter the security zone in order to ensure safe
passage in accordance with the Navigation Rules in 33 CFR chapter I,
subparts D and E.
(5) The local COTP 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.
(6) When moored, a security zone around an escorted vessel may also
be enforced by Coast Guard, State or Local law enforcement personnel
shoreside.
(7) Persons desiring to transit within 100 yards of an escorted
vessel in the Fifth Coast Guard District must contact the local Captain
of the Port on VHF channel 16 (156.800 MHz), VHF channel 13 (156.650
MHz) or at telephone numbers:
Philadelphia: (215) 271-4807
Baltimore: (410) 576-2693
Hampton Roads: (757) 668-5555 or (757) 484-8192
Wilmington: (910) 772-2200 or (910) 254-1500
(8) If permission is granted to transit within 100 yards of an
escorted vessel, all persons and vessels must comply with the
instructions of the District Commander, Captain of the Port or their
designated representative.
Dated: February 28, 2005.
S. Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 05-4601 Filed 3-8-05; 8:45 am]
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