[Federal Register: April 28, 2003 (Volume 68, Number 81)]
[Rules and Regulations]
[Page 22303-22305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap03-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-03-001]
RIN 1625-AA00 [Formerly RIN 2115-AA97]
Security Zones; Passenger Vessels, Portland, ME, Captain of the
Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing moving and fixed security
zones around high capacity passenger vessels, including international
ferries, located in the Portland, Maine, Captain of the Port zone.
These security zones are necessary to ensure public safety and prevent
sabotage or terrorist acts against these vessels. Persons and vessels
will be prohibited from entering these security zones without the
permission of the Captain of the Port, Portland, Maine.
DATES: This rule is effective April 15, 2003.
ADDRESSES: There were no comments or material received from the public.
However, documents indicated in this preamble as being available in the
docket, are part of docket CGD01-03-001 and are available for
inspection or copying at Marine Safety Office Portland, 27 Pearl
Street, Portland, ME 04101 between 8 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant R.F. Pigeon, Port
Operations Department, Marine Safety Office Portland at (207) 780-3251.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On February 27, 2003, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zones; Passenger Vessels, Portland, Maine,
Captain of the Port Zone'' in the Federal Register (68 FR 9039). We
received no letters commenting on the proposed rule. No public hearing
was requested, and none was held.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. The operation of international
ferries and the arrival of passenger vessels begin in mid-April in the
Portland, Maine, Captain of the Port zone. Due to heightened Homeland
Security Advisory System threat levels, which have changed since this
NPRM was first published, and the current conflict in Iraq, which has
recently erupted, we feel it is necessary and prudent to enact this
regulation on April 15, 2003 at the commencement of the international
ferry and passenger vessel season, in order to properly protect these
vessels, passengers, crew and others in the maritime community from
possible terrorist actions.
Background and Purpose
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia, and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. In addition, the ongoing operations in the Middle East
have made it prudent for U.S. ports to be on a higher state of alert
because the Al-Qaeda organization and other similar organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide. Due to these concerns, security zones around
passenger vessels are necessary to ensure the safety and protection of
the passengers aboard. As part of the Diplomatic Security and
Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7
of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow
the Coast Guard to take actions, including the establishment of
security zones, to prevent or respond to acts of terrorism against
individuals, vessels, or public or commercial structures. Moreover, the
Coast Guard has authority to establish security zones pursuant to the
Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950
(50 U.S.C. 191 et seq.) (the ``Magnuson Act''), and implementing
regulations promulgated by the President in subparts 6.01 and 6.04 of
part 6 of title 33 of the Code of Federal Regulations.
On October 7, 2002, a temporary final rule (TFR) entitled
``Security Zones; Passenger Vessels, Portland, Maine, Captain of the
Port Zone'' was published in the Federal Register (67 FR 62373). That
TFR, effective from September 25, 2002, until December 1, 2002,
addressed concerns that vessels operating near passenger vessels
present possible platforms from which individuals may gain unauthorized
access to these passenger vessels or launch terrorist attacks upon said
vessels. The TFR was issued to safeguard human life, vessels, and
waterfront facilities from sabotage or terrorist acts.
To address the aforementioned concerns, the Coast Guard is
establishing permanent security zones to prevent vessels or persons
from accessing the navigable waters around and under passenger vessels
in the Portland, Maine, Captain of the Port zone. Due to the continued
heightened security concerns, this rule is necessary to provide for the
safety of the port, the vessels, passengers and crew on the vessels, as
well as to ensure passenger
[[Page 22304]]
vessels are not used as possible platforms for terrorist attacks.
Discussion of Comments and Changes
We received no public comments subsequent to the publishing of the
proposed rule for these security zones. However, one change has been
made to the rule as published in the notice of proposed rulemaking.
Under ``Definition'', we have modified the phrase ``and for which
passengers are embarked or disembarked'' to read, ``and for which
passengers are embarked, disembarked or pay a port call.'' We feel this
clarification more accurately reflects the fact that this rule applies
to any of the defined passenger vessels that are entering a port in the
Portland, Maine, Captain Of the Port zone, whether embarking new
passengers, disembarking current passengers or just visiting the port.
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).
This rule is not significant for the following reasons: (a) The
security zones will encompass only relatively small portions of the
Captain of the Port, Portland, Maine zone around the transiting
passenger vessels, allowing vessels to safely navigate around the zones
without delay; and (b) vessels and persons may be allowed to enter
these zones on a case-by-case basis with permission of the Captain of
the Port.
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.
For reasons enumerated in the Regulatory Evaluation section above,
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. There is no indication the previous rule was burdensome on
the maritime public. No letters commenting on the previous rule were
received from the public.
Assistance for Small Entities
Under subsection 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. Lieutenant R. F. Pigeon of Marine Safety Office Portland,
Maine was available to answer any questions regarding this rule. No
requests for assistance were received.
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
(1-888-734-3427).
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 would 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 create an
environmental risk to health or risk to safety that might
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.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, since implementation of
[[Page 22305]]
this action will not result in any: (1) Significant cumulative impacts
on the human environment; (2) Substantial controversy or substantial
change to existing environmental conditions; (3) Impacts on properties
protected under the National Historic Preservation Act or (4)
Inconsistencies with any Federal, State or local laws or administrative
determinations relating to the environment. A final ``Environmental
Analysis Checklist'' and a final ``Categorical Exclusion
Determination'' are 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation
No. 0170.
0
2. Add Sec. 165.105 to read as follows:
Sec. 165.105 Security Zones; Passenger Vessels, Portland, Maine,
Captain of the Port Zone.
(a) Definition. ``Passenger vessel'' as used in this section means
a passenger vessel over 100 gross tons authorized to carry more than
500 passengers for hire making voyages, any part of which is on the
high seas, and for which passengers are embarked, disembarked or pay a
port call, in the Portland, Maine, Captain of the Port zone as
delineated in 33 CFR 3.05-15.
(b) Location. The following areas are security zones:
(1) All navigable waters within the Portland, Maine, Captain of the
Port Zone, extending from the surface to the sea floor, within a 100-
yard radius of any passenger vessel that is anchored, moored, or in the
process of mooring.
(2) All navigable waters, within the Portland, Maine, Captain of
the Port Zone, extending from the surface to the sea floor, extending
200 yards ahead, and 100 yards aside and astern of any passenger vessel
that is underway.
(c) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into or movement within these zones is
prohibited unless previously authorized by the Coast Guard Captain of
the Port, Portland, Maine (COTP) or his designated representative.
(2) All persons and vessels must comply with the instructions of
the COTP or the designated on-scene Coast Guard 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.
Emergency response vessels are authorized to move within the zone, but
must abide by restrictions imposed by the COTP or his designated
representative.
(3) No person may swim upon or below the surface of the water
within the boundaries of these security zones unless previously
authorized by the COTP or his designated representative.
(d) Enforcement. The Captain of the Port will enforce these zones
and may enlist the aid and cooperation of any Federal, state, county,
municipal, or private agency to assist in the enforcement of the
regulation.
Dated: April 9, 2003.
Wyman W. Briggs,
Acting Commander, U.S. Coast Guard, Captain of the Port, Portland,
Maine.
[FR Doc. 03-10424 Filed 4-25-03; 8:45 am]
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