[Federal Register: February 27, 2003 (Volume 68, Number 39)]
[Proposed Rules]
[Page 9039-9042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe03-33]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD01-03-001]
RIN 2115-AA97
Security Zones; Passenger Vessels, Portland, ME, Captain of the
Port Zone
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish moving and fixed
security zones around high capacity passenger vessels, including
international ferries, located in the Portland, Maine, Captain of the
Port zone. These proposed security zones are necessary to ensure public
safety and prevent sabotage or terrorist acts against these vessels.
When
[[Page 9040]]
activated, persons and vessels will be prohibited from entering these
security zones without the permission of the Captain of the Port,
Portland, Maine.
DATES: Comments and related materials much reach the U.S. Coast Guard
on or before March 31, 2003.
ADDRESSES: You may mail comments and related material to Marine Safety
Office Portland, 103 Commercial Street, Portland, ME 04101. Marine
Safety Office Portland maintains the public docket for this rulemaking.
Comments and materials 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 Portland between the hours of 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) 780-3092.
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 (CGD01-03-
001), 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
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 Portland at
the address listed 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 separate notice in the
Federal Register.
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 operation in Afghanistan and
growing tensions in Iraq 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 prudent 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 vessels or launch terrorist attacks upon these 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 proposes to
establish 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 proposed 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 vessels are not used as
possible platforms for terrorist attacks.
Discussion of Proposed Rule
This proposed rule would establish security zones that will be in
effect in the navigable waters within a 100-yard radius around any
passenger vessel that is moored, or in the process of mooring, at any
berth or anchored within the Portland, Maine, Captain of the Port zone.
While underway, the security zones will be 100 yards aside and astern
of the passenger vessel and 200 yards ahead which is needed due to the
passenger vessel's speed of advance through the water. To clarify the
types of passenger vessels this rule applies to, we have adopted a
modified version of the definition in 33 CFR 120.100 for this rule by
removing the requirement ``lasting more than 24 hours'' from the phrase
``making voyages lasting more than 24 hours, any part of which is on
the high seas; and by increasing the requirement for number of
passengers from ``authorized to carry more than 12 passengers for
hire'' to ``authorized to carry more than 500 passengers for hire''.
This definition will include high capacity cruise ships and
international ferries while excluding smaller vessels.
This proposed rule is needed to protect passenger vessels, persons
aboard passenger vessels, the public, waterways, ports and adjacent
facilities from sabotage or other subversive acts, accidents, or other
events of a similar nature taken upon passenger vessels in the
Portland, Maine, Captain of the Port zone. Entry into these zones will
be prohibited unless specifically authorized by the Captain of the Port
or his designated representative. Vessels already moored or anchored
when these security zones take effect are not required to get underway
to avoid either the moving or fixed zones unless specifically ordered
to do so by the Captain of the Port or his designated representative.
These security zones will not preclude the routine loading and
unloading of passengers, vehicles or cargo; or movement of authorized
employees and support personnel at any facility or aboard any passenger
vessel.
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. To the
extent that each is applicable, this regulation is issued under the
authority contained in 33 U.S.C. 1226 and 1231; 50 U.S.C. 191; 33 CFR
1.05-1(g), 6.04-1, 6.04-6 and 160.5; and 49 CFR 1.46.
Any violation of the security zones described herein is punishable
by, among others, civil penalties (not to exceed $25,000 per violation,
where each day of a continuing violation is a separate violation),
criminal penalties (imprisonment for not more than 10 years and a fine
of not more than
[[Page 9041]]
$250,000), in rem liability against the offending vessel and license
sanctions.
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
Transportation (DOT)(44 FR 11040, February 26, l979).
The Coast Guard expects the economic impact of this proposal to be
so minimal that a full Regulatory Evaluation under paragraph 10e of the
regulatory policies and procedures of DOT is unnecessary for the
following reasons: (a) The proposed 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; (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 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.
For reasons enumerated in the Regulatory Evaluation section above,
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. 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.
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 subsection 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 Lieutenant R. F.
Pigeon, Port Operations Department, Marine Safety Office Portland at
(207) 780-3092.
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 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 will 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 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 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
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.
To help the Coast Guard establish regular and meaningful
consultation and collaboration with Indian and Alaskan Native tribes,
we published a notice in the Federal Register (66 FR 36361, July 11,
2001) requesting comments on how to best carry out the order. We invite
your comments on how this proposed rule might impact tribal
governments, even if the 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. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have considered the environmental impact of this proposed rule
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant
Instruction M16475.lD, this rule is categorically excluded from further
environmental documentation. A ``Categorical Exclusion Determination''
is available in the docket where indicated under ADDRESSES.
[[Page 9042]]
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. Add Sec. 165.105 to read as follows:
Sec. 165.105 Security Zone: 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 or disembarked 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: February 3, 2003.
Mark P. O'Malley,
Commander, U.S. Coast Guard, Captain of the Port, Portland, Maine.
[FR Doc. 03-4635 Filed 2-26-03; 8:45 am]
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