[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Rules and Regulations]
[Pages 56695-56697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21245]


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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: Final rule.

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SUMMARY: The Coast Guard is 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. This 
security zone is needed to ensure public safety and enhance maritime 
security. The zone will ensure the security of the vessels during 
transit in the COTP Philadelphia zone.

DATES: This rule is effective September 10, 2004.

ADDRESSES: Comments and related material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, are part of docket CGD05-04-047 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 History

    On June 28, 2004 we published a notice of proposed rulemaking 
(NPRM) in the Federal Register entitled ``Security Zone; Atlantic 
Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and 
its tributaries'' in the Federal Register (69 FR 36032). We received no 
letters commenting on the proposed rule.
    In addition, a temporary final rule with the same title was 
published in the Federal Register on April 13, 2004 (69 FR 19326). That 
temporary final rule

[[Page 56696]]

established a security zone around escorted passenger vessels, but that 
rule was only effective through September 1, 2004.
    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. The temporary final rule has 
expired. Delaying the effective date of this rule would be contrary to 
public interest because immediate action is needed to protect against 
potential hazards and threats to passenger vessels.

Background and Purpose

    This rule is 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 is establishing this final rule to ensure vessels transit safely 
in the COTP zone Philadelphia, Pennsylvania.

Discussion of Comments and Changes

    During the public comment period, we received no letters or 
comments concerning this zone. We did not make any changes to the 
proposed security zone after the comment period.

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. 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 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.
    This rule will 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 rule, a security zone will be 
activated only when an escorted passenger vessel is in the COTP 
Philadelphia zone. Most vessel traffic can pass safely around the 
security zone, and maneuver-restricted vessels may seek permission from 
the COTP to pass within 100 yards of the vessel. Additionally, the 
opportunity to engage in recreational and charter fishing outside the 
limits of the security zone will not be disrupted.
    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, as none were identified that will be affected by the 
final rule.
    Vessel traffic counts indicate the waterway users will continue to 
have the same access to the waterway as in the past, with the exception 
of a small area surrounding transiting passenger vessels in the Captain 
of the Port Philadelphia zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this 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 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 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 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 will 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

[[Page 56697]]

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

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 Commandant Instruction M16475.1D, 
from further environmental documentation.
    We have considered the security zone access constraints around 
passenger vessels and have determined the public can safely transit the 
affected waterways outside the security zone, without significant 
impact on the environment.

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.  165.511.


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 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: September 10, 2004.
Jonathan D. Sarubbi,
Captain, U.S. Coast Guard, Captain of the Port, Philadelphia.
[FR Doc. 04-21245 Filed 9-21-04; 8:45 am]
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