[Federal Register Volume 69, Number 86 (Tuesday, May 4, 2004)]
[Proposed Rules]
[Pages 24549-24552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10115]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-067]
RIN 1625-AA00


Security Zone; Captain of the Port Hampton Roads Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes 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 would mitigate 
potential terrorist acts and would enhance the public and maritime 
safety and security. These proposed security zones would prohibit entry 
into or movement within 100-yards of passenger vessels and vessels 
carrying CDC.

DATES: Comments and related material must reach the Coast Guard on or 
before June 3, 2004.

[[Page 24550]]


ADDRESSES: You may mail comments and related material to the Coast 
Guard Marine Safety Office Hampton Roads, 200 Granby Street, Suite 700, 
Norfolk, Virginia 23510. The Waterways Management Branch of the Marine 
Safety Office maintains the public docket for this rulemaking. Comments 
and material received from the public, as well as documents indicated 
in this preamble as being available in the docket, will become part of 
this docket and will be available for inspection or copying at the USCG 
Marine Safety Office Hampton Roads between 9:30 a.m. and 2 p.m., Monday 
through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-04-
067), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. You may submit a 
request for a meeting by writing to Commanding Officer, U.S. Coast 
Guard Marine Safety Office Hampton Roads at the address under ADDRESSES 
explaining why one would be beneficial. If we determine that a public 
hearing would aid this rulemaking, we will hold one at a time and place 
announced by a separate notice in the Federal Register.

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 (FBI) 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 Proposed Rule

    The Coast Guard proposes to establish a 500-yard security zone 
around passenger vessels and vessels carrying CDC while they are in the 
COTP Hampton Roads zone, as defined in 33 CFR 3.25-10.
    The security zone would assist the Coast Guard by preventing other 
vessels or persons from engaging in terrorist actions against these 
vessels by controlling the movement of persons and other vessels from 
the surface to the bottom of the water in a 500-yard radius around 
these vessels. Vessels traveling within 500 yards of the subject 
vessels would be required to slow to the minimum safe speed that would 
allow them to navigate safely and avoid a collision, allision, or 
grounding. All vessels and persons would be prohibited from entering 
within 100 yards of the subject vessels without permission from the 
COTP Hampton Roads or his or her designated representative.
    The Coast Guard believes the establishment of these security zones 
is necessary for the following reasons:
    1. Passenger Vessels. These are vessels of at least 100 gross tons 
defined as a passenger vessel in 46 CFR 70.10-1, which specifies the 
number of passengers-for-hire for both international and other voyages. 
The establishment of a security zone would increase the protection 
afforded to these vessels and their passengers.
    2. Vessels Carrying CDC. CDC is defined in 33 CFR 160.204. These 
cargoes include division 1.1 and 1.2 explosives, permitted oxidizing 
material or blasting agents, highway route controlled or fissile 
radioactive material, poisonous gases, and certain other toxic or 
volatile materials. By the nature of these materials, an explosion or 
release of this type of cargo could have serious impact on the general 
public.
    The COTP would notify the maritime and general public by marine 
information broadcast of the periods during which individual security 
zones would be enforced. While in effect around a moving vessel, each 
zone would be enforced by law enforcement agency vessels. While in 
effect around a moored vessel, each zone would be enforced by a 
designated law enforcement agent shoreside or by a law enforcement 
agency vessel waterside. The COTP may enlist the aid and cooperation of 
any Federal, state, county, or municipal law enforcement agency to 
assist in the enforcement of the regulation.

[[Page 24551]]

Regulatory Evaluation

    This proposed 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 proposed 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.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule would affect 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.
    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 section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Mike 
Dolan at Coast Guard Marine Safety Office Hampton Roads, Waterways 
Management Branch, at telephone number (757) 668-5590.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed 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 proposed rule would 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 proposed 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 proposed 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 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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

    We have analyzed this proposed 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 because this rule establishes a security zone.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section

[[Page 24552]]

will be considered before we make a final decision on whether the rule 
should be categorically excluded from further environmental review.

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 proposes 
to amend 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. 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.

    2. Add Sec.  165.503 to read as follows:


Sec.  165.503  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 Sec.  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 vessel will be 
enforced by a law enforcement vessel. A security zone in effect around 
a moored vessel will be enforced either by a law enforcement agent 
shoreside or by 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.

    Dated: April 15, 2004.
Robert R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 04-10115 Filed 5-3-04; 8:45 am]
BILLING CODE 4910-15-P