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Rule

Security Zone; Captain of the Port Hampton Roads Zone, Hampton Roads, VA

Document Details

Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

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.

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FOR FURTHER INFORMATION CONTACT:

LT Mike Dolan, Chief of Waterways Management, USCG Marine Safety Office Hampton Roads, at (757) 668-5590.

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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. Start Printed 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.

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List of Subjects in 33 CFR Part 165

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For the reasons discussed in the preamble, the Coast Guard amends

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PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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1. The authority citation for part 165 continues to read as follows:

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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.

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2. Add § 165.503 to read as follows:

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Start Printed Page 40770
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 § 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.

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Dated: June 28, 2004.

Robert R. O'Brien, Jr.,

Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.

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[FR Doc. 04-15415 Filed 7-6-04; 8:45 am]

BILLING CODE 4910-15-P