Security Zone; Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and Its Tributaries

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing 500-yard temporary security zones throughout the Captain of the Port Philadelphia's area of responsibility around escorted passenger vessels in transit and 100-yard security zones around moored or anchored passenger vessels. The security zones are needed to ensure public safety and the safe transit of the passenger vessels in the Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and its tributaries. The temporary moving security zones prohibit vessels from entering within a 500-yard radius of the escorted passenger vessels while in transit, and within a 100-yard radius of passenger vessels while moored or anchored, unless authorized by the Captain of the Port, Philadelphia, Pennsylvania, or his designated representative. These security zones are limited in duration and affect only certain passenger vessels and a small area at any given time.

DATES:

This rule is effective from April 2, 2004, through September 1, 2004.

ADDRESSES:

Documents as indicated in this preamble are available as part of docket CGD05-04-066 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 Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. Publishing a NPRM and delaying the effective date would be contrary to the public interest, since immediate action is needed to continue to protect the public, ports and waterways of the United States.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Publishing a NPRM and delaying the effective date would be contrary to the public interest, since immediate action is needed to continue to protect the public, ports and waterways of the United States. The Coast Guard was notified on March 29, 2004, of scheduled port calls by passenger vessels, making it impracticable for the safety of passenger vessels and mariners to delay publishing this security zone.

The Coast Guard plans to publish a NPRM proposing a permanent rule for security zones around passenger vessels and requesting public comment.

Background and Purpose

The terrorist attacks of September 11, 2001 highlighted the need for heightened security measures at United States seaports. The President has found, pursuant to law, including the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.), that the security of the United States is and continues to be endangered following the attacks. The Captain of the Port of Philadelphia has determined that security zones are necessary to protect the public, the waterway, and passenger vessels from potential subversive acts.

Discussion of the Regulation

This temporary rule establishes 100-yard security zones around moored or anchored passenger vessels and 500-yard security zones around escorted passenger vessels while transiting the Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and its tributaries. The Captain of the Port, Philadelphia, Pennsylvania's zone extends out in the Atlantic Ocean from the shoreline to 12 miles. For purposes of this rule, “passenger vessel” is defined as a vessel greater than 100 feet in length, over 100 gross tons, and that is authorized to carry 500 or more passengers, making voyages lasting more than 24 hours, except for a ferry. No vessels or persons may come within a 500-yard radius of an underway, escorted passenger vessel, nor come or remain within a 100-yard radius of a moored or anchored passenger vessel without the permission of the Captain of the Port, Philadelphia, Pennsylvania or his designated representative.

These zones will be enforced around moving escorted passenger vessels and stationary passenger vessels while they are within the Captain of the Port of Philadelphia zone. A Broadcast Notice to Mariners will be issued to notify mariners to aid them in making alternate plans for transiting the affected waterway.

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).

The primary impact of this rule will be on vessels wishing to transit the affected waterway in the vicinity of passenger vessel security zone. Although this rule restricts traffic from freely transiting portions of the Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and its tributaries, the restrictions are limited in duration and affect only a limited area.

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.

This rule may affect the following entities, some of which may be small entities: owners or operators of vessels wishing to transit the affected waterways of the Atlantic Ocean, Chesapeake & Delaware Canal, Delaware Bay, Delaware River and its tributaries.

The rule will not have a significant impact on a substantial number of small entities for the following reasons: the restrictions are limited in duration and affect only a limited area. A broadcast notice to mariners will be issued to notify mariners to make alternate plans for transiting the affected waterway.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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

Taking of Private Property

This rule will not effect 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 does 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.

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.lD, from further environmental documentation.

A final “Environmental Analysis Checklist” 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, and Waterways

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 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. From April 2, 2004, through September 1, 2004, add §165.T05-066.