[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Rules and Regulations]
[Pages 42493-42495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14588]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-05-072]
RIN 1625-AA00


Safety and Security Zones: Liquefied Hazardous Gas Vessel, 
Liquefied Hazardous Gas Facility and Designated Vessel Transits, New 
York Marine Inspection Zone and Captain of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is temporarily suspending a portion of the 
regulation relating to security zones around Designated Vessels within 
the Captain of the Port New York Zone, and adding a temporary section 
to allow the Captain of the Port to protect Mass Transit Ferries and 
other vessels that are certificated to carry 150 or more passengers as 
Designated Vessels. This action is necessary to safeguard these vessels 
from sabotage, subversive acts, or other threats. This rule prohibits 
entry into or movement within these security zones without permission 
from the Captain of the Port of New York.

DATES: This rule is effective from July 8, 2005 until January 8, 2006.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection and copying at Coast Guard Sector New York, 212 Coast Guard 
Drive, room 301, Staten Island, New York 10305, between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Commander Brian Willis, Waterways 
Management Division, Coast Guard Sector New York, at (718) 354-4220.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) 
was not published for this regulation, and good cause exists for making 
it effective less than 30 days after Federal Register publication. Due 
to the potential threats of terrorist attacks against public mass 
transit systems and other means of conveyance, as illustrated by the 
attacks in London, UK on July 7, 2005, this rulemaking is urgently 
necessary to protect mass transit vessels and other vessels 
certificated to carry 150 passengers or more, regional infrastructure, 
and the public from waterborne attack and subversive activity. Any 
delay in the establishment and enforcement of this regulation's 
effective date would be clearly contrary to public interest since 
immediate action is needed to protect the public and the United States' 
interests against similar acts of terrorism.

Background and Purpose

    On July 7, 2005 the mass transit system in London, UK was 
devastated by simultaneous explosive attacks resulting in numerous 
fatalities and injuries. These attacks illustrate the potential 
vulnerability of mass transit systems and other means of passenger 
conveyance within the United States, including those maritime transit 
systems such as Mass Transit Ferries and other vessels certificated to 
carry 150 passengers or more. These acts were unforeseen and 
accomplished without warning. These security zones are needed to 
protect and safeguard the public, vessels, and vessel crews from 
consequences of attacks of similar nature.

Discussion of Rule

    The Coast Guard is temporarily suspending the regulations contained 
in 33 CFR 165.160 relating to Designated Vessels found in paragraphs 
(a)(2) and (b), replacing them with a temporary regulation containing a 
revised definition of ``Designated Vessel.'' The temporary section will 
decrease the number of passengers a vessel must be certificated to 
carry to qualify for Designated Vessel status from 500 to 150 and 
increases the types of vessels that the Captain of the Port (COTP) may 
effectuate in the security zone. This will allow the COTP to establish 
a security zone on all waters within 100 yards of any Mass Transit 
Ferry or any other passenger vessel certificated to carry 150 or more 
passengers that operates within the New York Captain of the Port Zone. 
Requirements from paragraph 165.160(c) will still apply to the 
temporary rule. All other requirements and stipulations contained in 
paragraphs (a)(1) and (c) of 33 CFR 165.160 will remain unchanged and 
in full effect.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory

[[Page 42494]]

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 regulation may have some impact on the 
public, but these potential impacts will be minimized for the following 
reasons: the safety and security zones are only effective when the 
Captain of the Port so directs and, when effective, vessels may, at all 
times, transit in all areas around the Designated Vessel zones thus 
having a minimal impact upon navigability of the waterway.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will 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. This rule may affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit within 100 yards of a vessel certificated to carry more than 
150 passengers.
    For the reasons outlined in the Regulatory Evaluation section 
above, this rule will not have a significant impact on a substantial 
number of small entities.
    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 subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard 
wants to assist small entities in understanding this rule so that they 
can better evaluate its effects on them and participate in the 
rulemaking. If this rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please call 
Commander Brian Willis, Waterways Management Division, at (718) 354-
4220.
    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 will 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 would not concern 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 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. 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.

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.

[[Page 42495]]

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. This proposed rule fits paragraph 34(g) as 
it suspends a portion of an existing safety and security zone and adds 
a temporary safety and security zone.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' will be available in the docket 
where indicated under ADDRESSES.

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 and 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.

Sec.  165.160  [Amended]

0
2. Suspend paragraphs(a)(2) and (b) within Sec.  165.160 from July 8, 
2005 to January 8, 2006.

0
3. Add temporary Sec.  165.T01-072 from July 8, 2005 to January 8, 2006 
to read as follows:


Sec.  165.T01-072  Safety and Security Zone: Designated Vessels, New 
York Captain of the Port Zone.

    (a) Location. The following areas are safety and security zones: 
All waters of the New York Marine Inspection Zone and Captain of the 
Port Zone within a 100-yard radius of any Designated Vessels.
    (b) Designated Vessels (DVs). For the purposes of this section, 
Designated Vessels include: Ferries, as defined in 46 CFR 2.10-25, that 
are certificated to carry 150 or more passengers; other vessels 
certificated to carry 150 or more passengers; vessels carrying 
government officials or dignitaries requiring protection by the U.S. 
Secret Service, or other Federal, State or local law enforcement 
agency; and barges or ships carrying petroleum products, chemicals, or 
other hazardous cargo.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 and 165.33 apply.
    (2) All persons and vessels must comply with the Coast Guard 
Captain of the Port or designated on-scene patrol personnel. On-scene 
Coast Guard patrol personnel include commissioned, warrant, and petty 
officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and federal law enforcement vessels. Upon 
being hailed by siren, radio, flashing light or other means from a U.S. 
Coast Guard vessel or other vessel with on-scene patrol personnel 
aboard, the operator of the vessel shall proceed as directed.
    (3) The Captain of the Port will notify the maritime community of 
periods during which these zones will be enforced by methods in 
accordance with 33 CFR 165.7.
    (d) Effective Dates. This rule will be enforced from July 8, 2005 
to January 8, 2006.

    Dated: July 8, 2005.
Glenn A. Wiltshire,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 05-14588 Filed 7-22-05; 8:45 am]
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