[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Proposed Rules]
[Page 11598-11600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-34]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-05-010]
RIN 1625-AA00 and 1625-AA87


Safety and Security Zones; Fifth Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to remove three established safety/
security zone regulations for Chesapeake Bay, Maryland, Captain of the
Port Hampton Roads and Atlantic Ocean, Chesapeake and Delaware Canal,
Delaware Bay, Delaware River and its tributaries. The Commander of the
Fifth Coast Guard District recently issued a District-wide security
zone regulation for escorted vessels that will make these three
previously established safety/security zone regulations unnecessary.
This proposed rule would eliminate any duplication between the three
established safety/security zone regulations and the recently
established District-wide security zone regulation for escorted
vessels.

DATES: Comments and related material must reach the Coast Guard on or
before April 8, 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 CGD05-05-010 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:

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 [CGD05-05-
010],

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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 8\1/
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.
We anticipate making the final rule effective less than 30 days after
publication. This would be done pursuant to 5 U.S.C. 553 (d) which
provides exceptions to the requirement not to make a rule effective
less than 30 days after publication, including for rules, like this
proposed one, that relieve restrictions.

Public Meeting

    We do not plan to hold a public meeting. However, you may submit a
request for a meeting by writing to the Fifth Coast Guard District,
Marine Safety Division, 431 Crawford Street, Portsmouth, Virginia 23704
explaining why one would be beneficial. If we determine that a public
meeting 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

    In 2003 and 2004, the Coast Guard promulgated three safety/security
zones regulations found at 33 CFR 165.500, 33 CFR 165.503 and 33 CFR
165.511. The first rule is entitled ``Safety/Security Zones; Chesapeake
Bay, Maryland'', was published in the Federal Register (68 FR 43311) on
July 22, 2003, and is also found at 33 CFR 165.500. That final rule
established moving safety and security zones 500 yards around all
cruise ships and vessels transporting CDC, LNG or LPG while transiting
or moored in the COTP Baltimore zone.
    The second rule entitled ``Security Zone; Captain of the Port
Hampton Roads,'' was published in the Federal Register (69 FR 40769) on
July 7, 2004, and is also found at 33 CFR 165.503. That final rule
established moving safety and security zones 500 yards around all
passenger vessels or vessels carrying a CDC within the Captain of the
Port Hampton Roads zone. Section 165.503 requires vessels to travel at
the minimum speed necessary to navigate safely within the outer 400
yards of the zone, and not to enter the inner 100 yards of the zone
without permission of the COTP.
    The third rule entitled ``Security Zone; Atlantic Ocean, Chesapeake
and Delaware Canal, Delaware Bay, Delaware River and its tributaries''
was published in the Federal Register (69 FR 56697) on September 22,
2004, and is also found at 33 CFR 165.511. That final rule established
moving safety and security zones in a 500-yard radius around escorted
passenger vessels in the Captain of the Port, Philadelphia zone as
defined in 33 CFR 3.25-05. Section 165.511 requires vessels to travel
at the minimum speed necessary to navigate safely within the outer 400
yards of the zone, and not to enter the inner 100 yards of the zone
without permission of the COTP.
    On February 28, 2005, the Commander, Fifth Coast Guard District
signed a final rule--which appears elsewhere in today's Federal
Register, docket number CGD05-05-171--establishing moving security
zones around all escorted vessels which is found at docket CGD05-05-
171. This final rule will become effective April 13, 2005. That final
rule applies to all escorted vessels transiting or moored in the waters
of the Fifth Coast Guard District. That 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 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.
    Once that final rule signed by the Commander, Fifth Coast Guard
District, becomes effective on April 13, 2005, the safety/security
zones for Chesapeake Bay, Maryland, Captain of the Port Hampton Roads
and Atlantic Ocean, Chesapeake and Delaware Canal, Delaware Bay,
Delaware River and its tributaries will no longer be necessary. That
final rule to be codified at 33 CFR 165.518 accomplishes the same
security as the three zones this rule proposes to remove (33 CFR
165.500, 33 CFR 165.503 and 33 CFR 165.511) and maintains consistency
throughout the Fifth Coast Guard District.

Discussion of Proposed Rule

    This proposed rule would amend 33 CFR part 165 by removing the
security zones regulations currently found at 33 CFR 165.500, 33 CFR
165.503 and 33 CFR 165.511. The removal of these three regulations,
combined with the final rule ``Security Zone; Fifth Coast Guard
District'' published elsewhere in today's Federal Register, will
provide consistent enforcement of moving security zones around all
escorted vessels during their entire transit through the Fifth Coast
Guard District. This will prevent confusion for mariners and vessels
transiting across the various Captain of the Port zones located in the
Fifth Coast Guard District.

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.
    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 as this proposed rule removes a
portion of a regulation that is no longer necessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this propsed 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.

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 the rule so that they can better evaluate its
effects on them and participate in the rulemaking process. If the
proposed rule would affect your small business, organization, or
government jurisdiction and you have questions concerning its
provisions or options for compliance, please contact Lieutenant Junior
Grade Jay Michalczak, Waterway Management Section, Marine Safety Office
Corpus Christi, at (361) 888-3162, Ext 313. The Coast Guard will not
retaliate against small entities that question or complain about this

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rule or any policy or action of the Coast Guard.

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

Taking of Private Property

    This proposed rule will 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 proposed rule is not an economically significant rule and
will 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 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, from further
environmental documentation because this rule is not expected to result
in any significant adverse environmental impact as described in NEPA.
    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.

    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.


Sec.  165.500  [Removed]

    2. Remove Sec.  165.500.


Sec.  165.503  [Removed]

    3. Remove Sec.  165.503.


165.511  [Removed]

    4. Remove Sec.  165.511.

    Dated: February 28, 2005.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 05-4602 Filed 3-8-05; 8:45 am]

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