04-14562. Security Zone; Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and Its Tributaries

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

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

DATES:

Comments and related material must reach the Coast Guard on or before July 28, 2004.

ADDRESSES:

You may mail comments and related material to Coast Guard Marine Safety Office Philadelphia, One Washington Avenue, Philadelphia, Pennsylvania, 19147. The Marine Safety Office Philadelphia Waterways Management Branch 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 the above mentioned office 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 [phone].

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 (CGD05-04-047), 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 they 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 the Marine Safety Office Philadelphia, Waterways Management Branch 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

On April 2, 2004, the Captain of the Port Philadelphia signed a temporary final rule (TFR) that was published in the Federal Register (69 FR 19326, April 13, 2004; CGD05-04-066). That rule, codified as temporary 33 CFR 165.T05-066, established security zones for the protection of escorted passenger vessels. It expires September 1, 2004.

Both that TFR and this proposed rule are 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 proposes this rule to ensure vessels transit safely in the COTP zone Philadelphia, Pennsylvania.

Discussion of Proposed Rule

This rule proposes placing a 500-yard security zone around all escorted passenger vessels in the COTP Philadelphia zone. Only vessels traveling at the minimum safe speed may transit in the 500-yard zone and no vessels will be allowed within 100 yards of any escorted passenger vessel while the vessel is in the COTP Philadelphia zone. The Captain of the Port Philadelphia, Pennsylvania's zone is defined in 33 CFR 3.25-05. For purposes of this rule, passenger vessels are defined as 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. All persons or vessels would be required to operate at the minimum safe speed necessary to maintain navigation within 500-yards of a passenger vessel in accordance with the Navigation Rules as seen in 33 CFR chapter I, subchapters D and E. No person or vessel would be able to transit or remain within 100-yards of a passenger vessel without the permission of the COTP Philadelphia, PA, or a designated representative while the escorted passenger vessel is underway, moored or anchored in the Captain of the Port Philadelphia zone. This rule applies to all passenger vessels with escorts, at least one of which will be a Coast Guard asset.

Stationary vessels that are moored or anchored must remain moored or anchored when an escorted passenger vessel approaches within 100 yards of the stationary vessel. Additionally, maneuver-restricted vessels may request permission of the COTP 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.

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. 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 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 may affect the following entities, some of which may be small entities: All vessels intending to transit in the COTP Philadelphia zone.

This proposed rule would 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 security zone, the rule is effective only when the passenger vessel is in the COTP Philadelphia zone, and vessel traffic could pass safely around the security zone. Additionally, the opportunity to engage in recreational and charter fishing outside the limits of the security zone will not be disrupted.

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 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 [phone].

Collection of Information

This proposed 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 proposed rule will not result in such 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 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 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. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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 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.

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, 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.

2. Add § 165.511 to read as follows:

§ 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 § 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 [phone].

(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: June 17, 2004.

Jonathan D. Sarubbi,

Captain, U.S. Coast Guard, Captain of the Port Philadelphia.