[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11549-11551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4601]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-171]
RIN 1625-AA87 (Formerly 1625-AA00)


Security Zone; Fifth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing permanent moving security 
zones around escorted vessels while they are in the navigable waters of 
the Fifth Coast Guard District. The security zones require all vessels 
in a 500-yard radius around escorted vessels, to operate at the minimum 
speed necessary to navigate safely and prohibits any vessels from 
entering within 100 yards of an escorted vessel. These security zones 
mitigate potential terrorist acts and enhance public and maritime 
safety and security.

DATES: This rule is effective April 13, 2005.

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 CGD05-04-171 and are available for inspection or 
copying at the Fifth Coast Guard District, Marine Safety Division, 431 
Crawford Street, Portsmouth, Virginia, 23704 between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant E.J. Terminella, Fifth 
Coast Guard District, at (757) 398-7783.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On December 28, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; Fifth Coast Guard District'' in the 
Federal Register (69 FR 77684). We did not receive any letters 
commenting on the proposed rule. No public meeting was requested and 
none was held.

Background and Purpose

    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. Terrorists have demonstrated both desire and ability 
to use multiple means in different geographic areas to successfully 
carry out their terrorist missions.
    During the past 3 years, the Federal Bureau of Investigation has 
issued several advisories to the public concerning the potential for 
terrorist attacks within the United States. The October 2002 attack on 
a tank vessel, M/V LIMBURG, off the coast of Yemen and the prior attack 
on the USS COLE demonstrate 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), and 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). Furthermore, the ongoing 
hostilities in Afghanistan and Iraq have made it prudent for U.S. port 
and waterway users 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.
    In addition to escorting vessels, a security zone is a tool 
available to the Coast Guard that may be used to control maritime 
traffic operating in the vicinity of vessels that the Coast Guard has 
determined need additional security measures during their transit. The 
District Commander has made a determination that it is necessary to 
establish a security zone around vessels that are escorted. This 
regulation, which will establish security zones around escorted 
vessels, will allow the COTP to safeguard escorted vessels, and reduce 
the possibility of a terrorist attack that might kill or injure persons 
or damage property in ports, harbors or waterfront facilities. Vessels 
that may require an escort are vessels of national security interest, 
such as a passenger vessel or a vessel carrying certain dangerous or 
hazardous cargo. These security zones around all escorted vessels 
during transit and while the escorted vessels are anchored, moored, or 
underway within the Fifth Coast Guard District will help ensure the 
safety of the ports and vessels in the navigable waters of the Fifth 
Coast Guard District.

Discussion of Comments and Changes

    No comments were received. For purposes of clarification, however, 
we did revise the definition of escorted vessel to expressly exclude 
U.S. naval vessels, as defined in Sec.  165.2015. This language was 
added to prevent any confusion between these zones and a Naval Vessel 
Protective Zone found at 33 CFR 165.2010.

Discussion of Rule

    This rule places a 500-yard security zone around all vessels that 
are being escorted by a Coast Guard surface, air or Coast Guard 
Auxiliary asset, or by a local law enforcement agency during their 
transit through the Fifth Coast Guard District. Only vessels traveling 
at the minimum safe speed may transit in the 500-yard zone and no 
persons or

[[Page 11550]]

vessels are allowed within 100 yards of any escorted vessel, without 
the permission of the District Commander, Captain of the Port or their 
designated representatives, while the vessel is within the Fifth Coast 
Guard District. Persons desiring to transit within 100 yards of an 
escorted vessel in the Fifth Coast Guard District must contact the 
local Captain of the Port on VHF channel 16 (156.800 MHz) or VHF 
channel 13 (156.650 MHz) and obtain permission to transit within 100 
yards of the escorted vessel. The boundaries of the Fifth Coast Guard 
District are defined in 33 CFR 3.25-1. This includes territorial waters 
12 nautical miles from the territorial sea baseline as defined in 33 
CFR part 2 subpart B. The boundaries of the four COTP zones within the 
Fifth Coast Guard District are defined in Sec.  3.25-05, Philadelphia 
Captain of the Port Zone; Sec.  3.25-10, Hampton Roads Marine 
Inspection Zone and Captain of the Port Zone; Sec.  3.25-15, Baltimore 
Captain of the Port Zone, and Sec.  3.25-20, Wilmington Marine 
Inspection Zone and Captain of the Port Zone.
    All persons within 500 yards of an escorted vessel are required to 
operate their vessels at the minimum safe speed necessary to maintain 
navigation in accordance with the Navigation Rules in 33 CFR Chapter I, 
subchapters D and E.
    Stationary vessels that are moored or anchored must remain moored 
or anchored when an escorted vessel approaches within 100 yards of the 
stationary vessel. Additionally, vessels restricted in their ability to 
maneuver must request permission from the District Commander, Captain 
of the Port or a designated representative, to enter within 100 yards 
of an escorted vessel in order to ensure safe passage in accordance 
with the Navigation Rules in 33 CFR Chapter I, subparts D and E.

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 District Commander, Captain of the Port or their designated 
representatives.

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.

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 this rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.

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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule does 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 Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that might 
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 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.

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

[[Page 11551]]

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.lD, 
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. 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.  165.518 to read as follows: Sec.  165.518 Security Zone; 
Waters of the Fifth Coast Guard District.
    (a) Definitions. As used in this section--
    Designated Representative means any U.S. Coast Guard commissioned, 
warrant or petty officer who has been authorized by the District 
Commander or local Captain of the Port (COTP), as defined in 33 CFR 
part 3, subpart 3.25, to act on his or her behalf.
    Escorted vessel means a vessel, other than a U.S. naval vessel as 
defined in Sec.  165.2015, that is accompanied by one or more Coast 
Guard assets or Federal, State or local law enforcement agency assets 
as listed below:
    (1) Coast Guard surface or air asset displaying the Coast Guard 
insignia.
    (2) Coast Guard Auxiliary surface asset displaying the Coast Guard 
Auxiliary insignia.
    (3) State and/or local law enforcement asset displaying the 
applicable agency markings and or equipment associated with the agency.
    State and/or local law enforcement officers means any State or 
local government law enforcement officer who has authority to enforce 
State criminal laws.
    (b) Location. The following area is a security zone: 500-yard 
radius around escorted vessels in the navigable waters of the Fifth 
Coast Guard District as defined in 33 CFR 3.25-1, from surface to 
bottom.
    (c) Regulations. (1) No vessel may approach within 500 yards of an 
escorted vessel within the navigable waters of the Fifth Coast Guard 
District, unless traveling at the minimum speed necessary to navigate 
safely.
    (2) No vessel may enter within a 100-yard radius of an escorted 
vessel within the navigable waters of the Fifth Coast Guard District, 
without approval from the District Commander, Captain of the Port or 
their designated representatives.
    (3) Moored or anchored vessels, which are overtaken by a moving 
zone, must remain stationary at their location until the escorted 
vessel maneuvers at least 500 yards past.
    (4) Vessels restricted in their ability to maneuver may request 
permission of the District Commander, Captain of the Port 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.
    (5) The local COTP 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.
    (6) When moored, a security zone around an escorted vessel may also 
be enforced by Coast Guard, State or Local law enforcement personnel 
shoreside.
    (7) Persons desiring to transit within 100 yards of an escorted 
vessel in the Fifth Coast Guard District must contact the local Captain 
of the Port on VHF channel 16 (156.800 MHz), VHF channel 13 (156.650 
MHz) or at telephone numbers:

Philadelphia: (215) 271-4807
Baltimore: (410) 576-2693
Hampton Roads: (757) 668-5555 or (757) 484-8192
Wilmington: (910) 772-2200 or (910) 254-1500

    (8) If permission is granted to transit within 100 yards of an 
escorted vessel, all persons and vessels must comply with the 
instructions of the District Commander, Captain of the Port or their 
designated representative.

    Dated: February 28, 2005.
S. Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 05-4601 Filed 3-8-05; 8:45 am]
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