[Federal Register Volume 69, Number 123 (Monday, June 28, 2004)]
[Proposed Rules]
[Pages 36032-36035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14562]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-047]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Coast Guard proposes establishing a security zone that 
will require all vessels in a 500-yard radius around escorted passenger 
vessels to operate at the minimum speed necessary to navigate safely 
and prohibit any vessels from entering within 100 yards of escorted 
passenger vessels in the Captain of the Port (COTP) Philadelphia zone. 
The proposed security zone is needed to ensure public safety and 
enhance maritime safety. The zone will ensure the security of the 
vessels during transit in the COTP Philadelphia zone.

DATES: Comments and related material must reach the Coast Guard on or 
before July 28, 2004.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office Philadelphia, One Washington Avenue, Philadelphia, 
Pennsylvania, 19147. The Marine Safety Office Philadelphia Waterways 
Management Branch 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 above mentioned office 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:

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-
047), indicate the specific section of this document to which each 
comment

[[Page 36033]]

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 they 
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. But you may submit a 
request for a meeting by writing to the Marine Safety Office 
Philadelphia, Waterways Management Branch at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Background and Purpose

    On April 2, 2004, the Captain of the Port Philadelphia signed a 
temporary final rule (TFR) that was published in the Federal Register 
(69 FR 19326, April 13, 2004; CGD05-04-066). That rule, codified as 
temporary 33 CFR 165.T05-066, established security zones for the 
protection of escorted passenger vessels. It expires September 1, 2004.
    Both that TFR and this proposed rule are necessary because hostile 
entities continue to operate with the intent to harm U.S. shipping 
interests. The President has continued the national emergencies he 
declared following the September 11, 2001 terrorist attacks. 67 FR 
58317 ((Sept. 13, 2002) (continuing national emergency with respect to 
terrorist attacks)); 67 FR 59447 ((Sept. 20, 2002) continuing national 
emergency with respect to persons who commit, threaten to commit or 
support terrorism)); 68 FR 55189 ((Sept. 22, 2003 (continuing national 
emergency with respect to persons who commit, threaten to commit or 
support terrorism)).
    The U.S. Maritime Administration (MARAD) 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 Coast 
Guard proposes this rule to ensure vessels transit safely in the COTP 
zone Philadelphia, Pennsylvania.

Discussion of Proposed Rule

    This rule proposes placing a 500-yard security zone around all 
escorted passenger vessels in the COTP Philadelphia zone. Only vessels 
traveling at the minimum safe speed may transit in the 500-yard zone 
and no vessels will be allowed within 100 yards of any escorted 
passenger vessel while the vessel is in the COTP Philadelphia zone. The 
Captain of the Port Philadelphia, Pennsylvania's zone is defined in 33 
CFR 3.25-05. For purposes of this rule, passenger vessels are defined 
as vessels greater than 100 feet in length, over 100 gross tons that 
are authorized to carry 500 or more passengers, making voyages lasting 
more than 24 hours, except for ferries. All persons or vessels would be 
required to operate at the minimum safe speed necessary to maintain 
navigation within 500-yards of a passenger vessel in accordance with 
the Navigation Rules as seen in 33 CFR chapter I, subchapters D and E. 
No person or vessel would be able to transit or remain within 100-yards 
of a passenger vessel without the permission of the COTP Philadelphia, 
PA, or a designated representative while the escorted passenger vessel 
is underway, moored or anchored in the Captain of the Port Philadelphia 
zone. This rule applies to all passenger vessels with escorts, at least 
one of which will be a Coast Guard asset.
    Stationary vessels that are moored or anchored must remain moored 
or anchored when an escorted passenger vessel approaches within 100 
yards of the stationary vessel. Additionally, maneuver-restricted 
vessels may request permission of the COTP 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.

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. There is ample room for vessels 
to navigate around the security zone and the Captain of the Port may 
allow vessels to enter the zone on a case by case basis with the 
express permission of the Captain of the Port of Philadelphia or their 
designated representative.

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 may affect the following entities, some of which 
may be small entities: All vessels intending to transit in the COTP 
Philadelphia zone.
    This proposed rule would not have a significant impact on a 
substantial number of small entities because the restrictions affect 
only a limited area. Although this is a permanent security zone, the 
rule is effective only when the passenger vessel is in the COTP 
Philadelphia zone, and vessel traffic could pass safely around the 
security zone. Additionally, the opportunity to engage in recreational 
and charter fishing outside the limits of the security zone will not be 
disrupted.
    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 could better 
evaluate its effects on them and participate in the rulemaking process. 
If the rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Junior 
Grade Kevin Sligh or Ensign Jill Munsch, Coast Guard Marine Safety 
Office/Group Philadelphia, at (215) 271-4889.

Collection of Information

    This proposed rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

[[Page 36034]]

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 proposed rule will not result in such 
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 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 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. 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 proposed 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.

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.  165.511 to read as follows:


Sec.  165.511  Security Zone; Atlantic Ocean, Chesapeake & Delaware 
Canal, Delaware Bay, Delaware River and its tributaries.

    (a) Location. A 500-yard radius around escorted passenger vessels 
in the Captain of the Port, Philadelphia zone as defined 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) All persons or vessels operating at the minimum safe speed 
necessary to maintain navigation may transit within 500 yards of an 
escorted passenger vessel without the permission of the Captain of the 
Port Philadelphia, PA or designated representative while the escorted 
passenger vessel is in the Captain of the Port Philadelphia zone.
    (3) No person or vessel may transit or remain within 100 yards of 
an escorted passenger vessel without the permission of the Captain of 
the Port Philadelphia, PA or designated representative while the 
passenger vessel is in the Captain of the Port Philadelphia zone.
    (4) Any person or vessel authorized to enter the 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 an escorted passenger vessel approaches within 100 yards 
of any vessel that is moored or anchored, the stationary vessel must 
stay moored or anchored while it remains within 100 yards of the 
passenger vessel 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 designated representative 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 
Captain of the Port or designated representative should:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their

[[Page 36035]]

ability to maneuver to pass within the 100 yards of the 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.
    Escort means assets (surface or air) with the Coast Guard insignia 
that accompany and protect the escorted vessel, armed with crew-served 
weapons that are manned and ready.
    Passenger Vessels means vessels greater than 100 feet in length, 
over 100 gross tons that are authorized to carry 500 or more 
passengers, making voyages lasting more than 24 hours, except for 
ferries.

    Dated: June 17, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port Philadelphia.
[FR Doc. 04-14562 Filed 6-25-04; 8:45 am]
BILLING CODE 4910-15-P