[Federal Register Volume 69, Number 129 (Wednesday, July 7, 2004)]
[Rules and Regulations]
[Pages 40768-40770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15415]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-067]
RIN 1625-AA87 (Formerly 1625-AA00)


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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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.

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

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.

[[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.

List of Subjects in 33 CFR Part 165

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


0
2. Add Sec.  165.503 to read as follows:

[[Page 40770]]

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 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.

    Dated: June 28, 2004.
Robert R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.
[FR Doc. 04-15415 Filed 7-6-04; 8:45 am]
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