[Federal Register Volume 68, Number 14 (Wednesday, January 22, 2003)]
[Rules and Regulations]
[Pages 2884-2886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1008]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD05-02-102]
RIN 2115-AE84


Regulated Navigation Area; Chesapeake Bay Entrance and Hampton 
Roads, VA and Adjacent Waters

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: Commander, Fifth Coast Guard District is temporarily expanding 
the geographic definition of the Hampton Roads Regulated Navigation 
Area to include the waters of the 12 nautical mile territorial sea off 
the Coast of Virginia and by adding new port security measures, in 
order to improve the safety and security of vessel traffic at the 
entrance to Chesapeake Bay and Hampton Roads, Virginia. The effect of 
this temporary rule will be to ensure the safety and security of the 
boating public, local military commands, and commercial shipping 
interests in the area.

DATES: This temporary final rule is effective from December 20, 2002 to 
June 15, 2003.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at USCG Marine Safety Office Hampton Roads, 200 
Granby Street, Norfolk, Virginia 23510 between 9:30 a.m. and 2 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Monica Acosta, project 
officer, USCG Marine Safety Office Hampton Roads, telephone number 
(757) 441-3453.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation and the rule takes effect immediately. Under 5 U.S.C. 
553(b)(B), the Coast Guard finds that good cause exists for not 
publishing an NPRM. Immediate action is necessary to ensure the safety 
and security of the public, naval vessels moored at Naval Station 
Norfolk, and the commercial shipping industry in Hampton Roads, VA. 
There have been recent reports, all a matter of public record, that 
indicate a continuing high risk of terrorist activity in the United 
States. Based on these reports, the Fifth Coast Guard District 
Commander has determined a heightened security condition in the Port of 
Hampton Roads is required. Delay in implementing these changes, 
therefore, would be contrary to the public interest.
    For similar reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this temporary rule effective 
less than 30 days after publication in the Federal Register.

Background and Purpose

    This temporary rule is necessary for the District Commander to 
reduce the potential threat to the Port of Hampton Roads, VA and 
surrounding waterways. The Coast Guard, as lead federal agency for 
maritime homeland security, must have the means to be aware of, deter, 
detect, intercept, and respond to asymmetric threats, acts of 
aggression,

[[Page 2885]]

and attacks by terrorists on the American homeland while at the same 
time maintaining our freedoms and sustaining the flow of commerce. The 
Coast Guard implements Limited Access Areas, listed in 33 CFR part 165, 
in order to control vessel movements within Captain of the Port Zones. 
A Regulated Navigation Area is a type of Limited Access Area that may 
be used to control vessel traffic by specifying times of vessel entry, 
movement, or departure to, from, within, or through ports, harbors or 
other waters. The temporary rule the District Commander has established 
by this rulemaking allows for differentiation between lawful and 
unlawful maritime activities without unreasonably disrupting the free 
flow of commerce.
    The District Commander has created a series of validation 
procedures to identify legitimate users of the Port of Hampton Roads. 
Validation procedures for vessels in excess of 300 GT, including tug 
and barge combinations in excess of 300 gross tons combined, include 
the following:
    1. Vessels must check in with the Captain of the Port or his 
representative at least thirty minutes prior to entry to obtain 
permission to transit the Regulated Navigation Area.
    2. Upon authorization and approval by the Captain of the Port or 
his representative, the vessel may enter the Regulated Navigation Area.
    3. All vessels that receive permission to enter the Regulated 
Navigation Area remain subject to a Coast Guard port security boarding.
    4. Thirty minutes prior to getting underway, vessels departing or 
moving within the Regulated Navigation Area must contact the Captain of 
the Port or his representative via VHF-FM channel 13 or 16, call (757) 
444-5209/5210, or call (757) 441-3298 for the Captain of the Port 
Command Duty Officer.
    The Captain of the Port will notify the public of changes in the 
status of the port security requirements by marine information 
broadcast on VHF-FM marine band radio, channel 22A (157.1 MHz)

Regulatory Evaluation

    This temporary final rule is not a significant regulatory action 
under section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. It has not been reviewed by the Office of Management and 
Budget under that Order. It is not significant under the regulatory 
policies and procedures of the Department of Transportation (DOT) (44 
FR 11040; February 26, 1979). This temporary final rule will affect 
only those vessels in excess of 300 GT that enter and depart the Port 
of Hampton Roads and it is implemented for a limited duration. 
Therefore, we expect the economic impact of this temporary final rule 
to be so minimal that a full Regulatory Evaluation under paragraph 10e 
of the regulatory policies and procedures of DOT is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this temporary rule will have a significant economic 
impact on a substantial number of small entities. ``Small entities'' 
include 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. section 605(b) that this 
temporary rule will not have a significant economic impact on a 
substantial number of small entities. This temporary rule will affect 
only the following entities, some of which may be small entities: 
owners and operators of commercial vessels larger than 300 gross tons 
intending to transit or anchor in the Regulated Navigation Area. 
Because the number of small entities owning/operating commercial 
vessels of this size is not substantial, the rule is for a limited 
duration, and there is little anticipation of delay when requesting 
entry into the Area, the economic impact of this temporary rule should 
be minimal.
    If, however, you believe that your business or organization 
qualifies as a small entity and that this temporary rule will have a 
significant economic impact on your business or organization, please 
submit a comment (see ADDRESSES) explaining why you believe it 
qualifies and in what way and to what degree this temporary rule will 
economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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 temporary rule does not provide for a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

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 temporary rule 
under that Order and have determined that it does not have implications 
for federalism.

Unfunded Mandates

    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 temporary rule will not result in such 
expenditure, we do discuss the effects of this temporary rule elsewhere 
in this preamble.

Taking of Private Property

    This temporary 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 temporary 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 temporary rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This temporary 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.

[[Page 2886]]

Indian Tribal Governments

    This temporary 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 temporary 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.

Environment

    The Coast Guard considered the environmental impact of this 
temporary final rule and concluded that under figure 2-1, paragraph 
(34)(g) of Commandant Instruction M16475.lC, this temporary final rule 
is categorically excluded from further environmental documentation. 
This temporary rule seeks to modify a well-established Regulated 
Navigation Area, and will be in effect for 6 months. A ``Categorical 
Exclusion Determination'' is available in the docket for inspection or 
copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    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

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

    Authority: 33 U.S.C 1231; 50 U.S.C 191; 33 CFR 1.05-1(g), 6.04-
1, 6.04-6, and 160.5; 49 CFR 1.46.


    2. From December 20, 2002, until June 15, 2003, in Sec.  165.501, 
temporarily suspend paragraph (a)(1) and add new paragraphs (a)(13), 
(d)(15) and (d)(16) to read as follows:


165.501  Chesapeake Bay entrance and Hampton Roads, VA and adjacent 
waters-regulated navigation area.

    (a) * * *
    (1) A line drawn due east from the mean low water mark at the North 
Carolina/Virginia border at latitiude 36[deg]33'03'' N, longitude 
75[deg]52'00'' W, to the Territorial Seas boundary line at latitiude 
36[deg]33'05'' N, longitude 75[deg]36'51'' W, thence generally 
northeastward along the Territorial Seas boundary line to latitiude 
38[deg]01'39'' N, longitude 74[deg]57'18'' W, thence due west to the 
mean low water mark at the Maryland/Virginia border at latitiude 
38[deg]01'39'' N, longitude 75[deg]14'30'' W.
* * * * *
    (d) * * *
    (15) Port Security Requirements. No vessel in excess of 300 gross 
tons, including tug and barge combinations in excess of 300 gross tons 
(combined), shall enter the Regulated Navigation Area, move within the 
Area, or be present within the Area unless it complies with the 
following requirements.
    (i) Obtain authorization to enter the Regulated Navigation Area 
from the Captain of the Port or his representative at least thirty 
minutes prior to entering the Regulated Navigation Area. All vessels 
entering or remaining in the Area may be subject to a Coast Guard 
boarding.
    (ii) Follow all instructions issued by the Captain of the Port or 
his representative.
    (iii) Ensure that no person who is not a permanent member of the 
vessel's crew, or a member of a Coast Guard boarding team, boards the 
vessel without presenting valid photo identification.
    (iv) Report any departure from or movement within the Regulated 
Navigation Area to the Captain of the Port or his representative at 
least 30 minutes prior to getting underway.
    (v) Contact the Captain of the Port or his representative on VHF-FM 
channel 13 or 16, or by calling (757) 444-5209, (757) 444-5210, or 
(757) 441-3298
    (vi) In addition to the authorities listed in this part, this 
paragraph is promulgated under the authority under 33 U.S.C. 1226.
    (16) For purposes of the port security requirements in paragraph 
(d)(15) of this section, the Captain of the Port or his representative 
means any official designated by the Captain of the Port including, but 
not limited to, any Coast Guard patrol vessel. All patrol vessels shall 
display the Coast Guard Ensign at all times when underway.
* * * * *

    Dated: December 20, 2002.
J. D. Hull,
Vice Admiral, Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 03-1008 Filed 1-21-03; 8:45 am]
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