05-9036. Security Zones; Charleston Harbor, Cooper River, SC

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes a permanent fixed security zone in the waters from the Don Holt, I-526 Bridge, on the Cooper River to the entrance of Foster Creek on the Cooper River, South Carolina. This security zone is necessary to protect the public and port from potential subversive acts during port embarkation operations. During enforcement of the security zone vessels would be prohibited from entering, transiting, anchoring, mooring, or loitering within this zone, unless specifically authorized by the Captain of the Port, Charleston, South Carolina, or the Captain of the Port's designated representative.

DATES:

Comments and related material must reach the Coast Guard on or before May 26, 2005.

ADDRESSES:

You may mail comments and related material to Marine Safety Office Charleston, 196 Tradd St., Charleston, SC 29401. Marine Safety Office Charleston 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 Marine Safety Office Charleston between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

LTJG Matthew Meskun, Chief of Waterways Management Division at 843-720-3240.

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 (COTP Charleston 05-037), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know that your submission 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 Marine Safety Office Charleston 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

This security zone is necessary to protect the safety of life and property on navigable waters and prevents potential terrorist threats aimed at military installations during strategic embarkation operations. The security zone would encompass all waters on the Cooper River, South Carolina, from the Don Holt I-526 Bridge to the entrance of Foster Creek. Two or more military vessels may be in port at the same time, and each of these vessels requires security zones. When this situation occurs, the security zone described above would be enforced and would ensure greater vessel security than enforcing individual security zones. Additionally, this proposed security zone has been in place on a temporary basis since the terrorist attacks of September 11, 2001. The current temporary security zone, 33 CFR 165.T07-145, was published in the Federal Register January 6, 2005 (70 FR 1187).

Discussion of Proposed Rule

The proposed security zone would encompass all waters on the Cooper River, South Carolina, from the Don Holt I-526 Bridge to the entrance of Foster Creek. The Charleston Captain of the Port would enforce the security zone on the Cooper River from time to time and in the interest of national security vessels that are carrying cargo for the Department of Defense.

These vessels that carry DoD cargo need a level of security that requires the Cooper River to be closed to all traffic for a short period of time. Security assets would be on scene and mariners would be given as much advanced notice as possible. Marine Safety Office Charleston would notify the maritime community of closure periods via a broadcast notice to mariners on VHF Marine Band Radio, Channel 16 (156.8 MHz), or Marine Safety Information Bulletins, or actual notice from on scene security assets enforcing the zone.

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.

The limited geographic area encompassed by the security zone should not restrict the movement of commercial or recreational vessels through the Port of Charleston. Also, the Coast Guard Captain of the Port or the Captain of the Port's designated representative may allow an individual to transit the security zone subsequent to an individual's request.

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 would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit a portion of the Cooper River while the security zone is in effect.

This security zone would not have a significant economic impact on a substantial number of small entities because it would only be in place for short periods of time on an infrequent basis. Advanced notice would be provided to mariners so they can adjust their schedules due to enforcement of the security zone.

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 can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Mathew Meskun at Marine Safety Office Charleston at 843-720-3240. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Collection of Information

This proposed rule would call 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 proposed 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 would not result in such an 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 Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might 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.

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 proposed 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 due to its limited duration in a fixed area.

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. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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; 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 § 165.709 to read as follows:

§ 165.709

Security Zone; Charleston Harbor, Cooper River, South Carolina.

(a) Regulated area. The Coast Guard is establishing a fixed security zone on all waters of the Cooper River, bank-to-bank and surface to bottom, from the Don Holt I-526 Bridge to the intersection of Foster Creek at a line on 32 degrees 58 minutes North Latitude.

(b) Enforcement period. This section will be enforced when security assets are on scene and Marine Safety Office Charleston has notified the maritime community that an Enforcement Period is in effect. Marine Safety Office Charleston will notify the maritime community by broadcast notice to mariners on VHF Marine Band Radio, Channel 16 (156.8 MHz), or Marine Safety Information Bulletins, or actual notice from on scene security assets enforcing the security zone.

(c) Regulations. During enforcement of the security zone described in paragraph (a) of this section, vessels or persons are prohibited from entering, transiting, mooring, anchoring, or loitering within the security zone unless authorized by the Captain of the Port Charleston, South Carolina or his or her designated representative.

(1) Persons desiring to transit the Regulated Area may contact the Captain of the Port via VHF-FM channel 16 or by telephone at [phone] and request permission to transit the security zone.

(2) If permission to transit the security zone is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representative.

Dated: April 15, 2005.

John E. Cameron,

Commander, U.S. Coast Guard, Captain of the Port, Charleston, South Carolina.