[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62373-62376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25405]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-114]
RIN 2115-AA97


Security Zones; Passenger Vessels, Portland, Maine, Captain of 
the Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Temporary 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 actions are necessary to ensure public safety and prevent 
sabotage or terrorist acts against these vessels. Persons and vessels 
are prohibited from entering these security zones without permission of 
the Captain of the Port, Portland, Maine.

DATES: This rule is effective from September 25, 2002, until December 
1, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Marine Safety Office Portland, Maine, 103 
Commercial Street, Portland, Maine 04101 between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) R. F. 
Pigeon, Port Operations Department, Marine Safety Office Portland, 
Maine at (207) 780-3251.

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 an NPRM. Due to the warnings given by 
national security and intelligence officials that there is an

[[Page 62374]]

increased risk that further subversive or terrorist activity may be 
launched against the United States, the Homeland Security Advisory 
System level was upgraded to ``high'' and the Maritime Security 
(MARSEC) Level was raised to Level II indicating a heightened threat. 
As a result, a heightened level of security has been established around 
all passenger vessels in the Portland, Maine, Captain of the Port zone. 
These security zones are 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.
    Passenger vessels have already begun their seasonal arrivals in the 
Portland, Maine, Captain of the Port zone. Any delay in the effective 
date of this rule, is contrary to the public interest insofar as it may 
render individuals and facilities within, and adjacent to, passenger 
vessels vulnerable to subversive activity, sabotage or terrorist 
attack. The measures contemplated by this rule are intended to prevent 
future terrorist attacks against individuals and facilities within or 
adjacent to passenger vessels. Immediate action is required to 
accomplish these objectives and necessary to continue safeguarding 
these vessels and the surrounding area.
    For the reasons stated in the paragraphs above, under 5 U.S.C. 
553(d)(3), the Coast Guard also finds that good cause exists for making 
this rule effective less than 30 days after publication in the Federal 
Register.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on commercial 
and public structures (airplanes, the World Trade Center in New York 
and the Pentagon in Arlington, Virginia) killing large numbers of 
people and damaging properties of national significance. There is an 
increased risk that further subversive or terrorist activity may be 
launched against the United States based on warnings given by national 
security and intelligence officials.
    Due to these warnings, on September 10, 2002 the Homeland Security 
Advisory System level was upgraded to ``high'' and the Maritime 
Security (MARSEC) Level was raised to Level II indicating a heightened 
threat. As a result, a heightened level of security has been 
established around all passenger vessels in the Portland, Maine, 
Captain of the Port zone. In addition, the increased tensions in the 
Middle East have made it prudent for select facilities and vessels to 
be on a higher state of alert because terrorist organizations have 
publicly declared an ongoing intention to conduct armed attacks on U.S. 
interests worldwide.
    These heightened security concerns, together with the catastrophic 
impact that a terrorist attack against a passenger vessel would have to 
the public interest, make these security zones prudent on the navigable 
waterways of the United States. 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. As a result, the Coast Guard is taking measures to 
prevent vessels or persons from accessing the navigable waters close to 
passenger vessels in the Portland, Maine, Captain of the Port zone.

Discussion of Rule

    This regulation establishes temporary 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 zone will be 100 yards on each side 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 which 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 for ``making voyages lasting more than 
24 hours'' 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 change 
allows for including high capacity cruise ships and international 
ferries under the definition while excluding smaller vessels.
    These security zones are 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.
    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 $250,000), in rem liability against the offending 
vessel and license sanctions.

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 Transportation 
(DOT) (44 FR 11040, February 26, 1979). These zones will encompass a 
small portion of the waterway for a limited period of time. There is 
ample room for vessels to navigate around the security zones and 
delays, if any, are expected to be minimal. 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 the same reasons stated 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.

[[Page 62375]]

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer 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 this rule 
will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions or 
operations for compliance, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
    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 an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will 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 does not create an 
environmental risk to health or risk to safety 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. 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 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 because we are establishing a temporary 
security zone. A ``Categorical Exclusion Determination'' is available 
in the docket for inspection or copying where indicated under 
ADDRESSES.

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 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. 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 temporary Sec.  165.T01-114 to read as follows:


Sec.  165.T01-114  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 of which any part is on the 
high seas; and for which passengers are embarked or disembarked in the 
Portland, Maine, Captain of the Port zone as defined in 33 CFR 3.05-15.
    (b) Location. The following areas are security zones:
    (1) All 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.
    (2) All navigable waters of the Portland, Maine, Captain of the 
Port zone 200-yards ahead, and 100-yards on each side 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. 
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.
    (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.

[[Page 62376]]

    (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) Effective period. This section is effective from September 25, 
2002, through December 1, 2002.

    Dated: September 25, 2002.
W.W. Briggs,
Acting Commander, U.S. Coast Guard, Captain of the Port, Portland, 
Maine.
[FR Doc. 02-25405 Filed 10-4-02; 8:45 am]
BILLING CODE 4910-15-P