[Federal Register Volume 69, Number 71 (Tuesday, April 13, 2004)]
[Rules and Regulations]
[Pages 19326-19328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8350]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-066]
RIN 1625-AA00


Security Zone; Atlantic Ocean, Chesapeake & Delaware Canal, 
Delaware Bay, Delaware River and Its Tributaries

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing 500-yard temporary security 
zones throughout the Captain of the Port Philadelphia's area of 
responsibility around escorted passenger vessels in transit and 100-
yard security zones around moored or anchored passenger vessels. The 
security zones are needed to ensure public safety and the safe transit 
of the passenger vessels in the Atlantic Ocean, Chesapeake & Delaware 
Canal, Delaware Bay, Delaware River and its tributaries. The temporary 
moving security zones prohibit vessels from entering within a 500-yard 
radius of the escorted passenger vessels while in transit, and within a 
100-yard radius of passenger vessels while moored or anchored, unless 
authorized by the Captain of the Port, Philadelphia, Pennsylvania, or 
his designated representative. These security zones are limited in 
duration and affect only certain passenger vessels and a small area at 
any given time.

DATES: This rule is effective from April 2, 2004, through September 1, 
2004.

ADDRESSES: Documents as indicated in this preamble are available as 
part of docket CGD05-04-066 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 Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM. Publishing a NPRM and delaying 
the effective date would be contrary to the public interest, since 
immediate action is needed to continue to protect the public, ports and 
waterways of the United States.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists 
for making this rule effective less than 30 days after publication in 
the Federal Register. Publishing a NPRM and delaying the effective date 
would be contrary to the public interest, since immediate action is 
needed to continue to protect the public, ports and waterways of the 
United States. The Coast Guard was notified on March 29, 2004, of 
scheduled port calls by passenger vessels, making it impracticable for 
the safety of passenger vessels and mariners to delay publishing this 
security zone.
    The Coast Guard plans to publish a NPRM proposing a permanent rule 
for security zones around passenger vessels and requesting public 
comment.

Background and Purpose

    The terrorist attacks of September 11, 2001 highlighted the need 
for heightened security measures at United States seaports. The 
President has found, pursuant to law, including the Act of June 15, 
1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 
et seq.), that the security of the United States is and continues to be 
endangered following the attacks. The Captain of the Port of 
Philadelphia has determined that security zones are necessary to 
protect the public, the waterway, and passenger vessels from potential 
subversive acts.

Discussion of the Regulation

    This temporary rule establishes 100-yard security zones around 
moored or anchored passenger vessels and 500-yard security zones around 
escorted passenger vessels while transiting the Atlantic Ocean, 
Chesapeake & Delaware Canal, Delaware Bay, Delaware River and its 
tributaries. The Captain of the Port, Philadelphia, Pennsylvania's zone 
extends out in the Atlantic Ocean from the shoreline to 12 miles. For 
purposes of this rule, ``passenger vessel'' is defined as a vessel 
greater than 100 feet in length, over 100 gross tons, and that is 
authorized to carry 500 or more passengers, making voyages lasting more 
than 24 hours, except for a ferry. No vessels or persons may come 
within a 500-yard radius of an underway, escorted passenger vessel, nor 
come or remain within a 100-yard radius of a moored or anchored 
passenger vessel without the permission of the Captain of the Port, 
Philadelphia, Pennsylvania or his designated representative.
    These zones will be enforced around moving escorted passenger 
vessels and stationary passenger vessels while they are within the 
Captain of the Port of Philadelphia zone. A Broadcast Notice to 
Mariners will be issued to notify mariners to aid them in making 
alternate plans for transiting the affected waterway.

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).
    The primary impact of this rule will be on vessels wishing to 
transit the affected waterway in the vicinity of passenger vessel 
security zone. Although this rule restricts traffic from freely 
transiting portions of the Atlantic Ocean, Chesapeake & Delaware Canal, 
Delaware Bay, Delaware River and its tributaries, the restrictions are 
limited in duration and affect only a limited area.

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.
    This rule may affect the following entities, some of which may be 
small entities: owners or operators of vessels wishing to transit the 
affected waterways of the Atlantic Ocean, Chesapeake & Delaware Canal, 
Delaware Bay, Delaware River and its tributaries.
    The rule will not have a significant impact on a substantial number 
of small entities for the following reasons: the restrictions are 
limited in duration and

[[Page 19327]]

affect only a limited area. A broadcast notice to mariners will be 
issued to notify mariners to make alternate plans for transiting the 
affected waterway.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 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 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 effect 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 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.

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.lD, 
from further environmental documentation.
    A final ``Environmental Analysis Checklist'' 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, and 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. Chapters 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. From April 2, 2004, through September 1, 2004, add Sec. 165.T05-066.


Sec.  165.T05-066 Security  Zone; Atlantic Ocean, Chesapeake & Delaware 
Canal, Delaware Bay, Delaware River and its tributaries.

    (a) Location. All navigable waters within 500 yards of escorted 
passenger vessels when they are in the Captain of the Port, 
Philadelphia zone, as established 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) The 500-yard moving security zones prohibit a person or a 
vessel from transiting or remaining within a 500-yard radius of an 
escorted passenger vessel while the passenger vessel is transiting in 
the Captain of the Port Philadelphia area of responsibility, unless 
authorized by the Captain of the Port Philadelphia, PA or designated 
representative.
    (3) No person or vessel may come within 100 yards of a moored or 
anchored passenger vessel, unless authorized by the Captain of the Port 
Philadelphia, PA, or designated representative.
    (4) Any person or vessel authorized to enter a 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 a passenger vessel approaches within 500 yards of any 
moored or anchored stationary vessel, the stationary vessel must remain 
moored or anchored. The 500-yard security zone around the passenger

[[Page 19328]]

vessel will remain in effect while the passenger vessel is transiting 
near the stationary vessel. The stationary vessel must remain moored or 
anchored 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 official 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 on-
scene official patrol or Captain of the Port, or designated 
representative may:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within the 500-yard 
zone around the transiting 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.
    Passenger vessel means a vessel greater than 100 feet in length, 
over 100 gross tons, and is authorized to carry 500 or more passengers, 
making voyages lasting more than 24 hours, except for a ferry.

    Dated: April 2, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 04-8350 Filed 4-12-04; 8:45 am]
BILLING CODE 4910-15-P