[Federal Register Volume 67, Number 214 (Tuesday, November 5, 2002)]
[Proposed Rules]
[Pages 67342-67345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28089]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP Miami-02-115]
RIN 2115-AA97


Security Zones; Port of Palm Beach, Palm Beach, FL; Port 
Everglades, Fort Lauderdale, FL; Port of Miami, Miami, FL; and Port of 
Key West, Key West, FL

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rule making.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is proposing to establish permanent security 
zones throughout the Captain of the Port of Miami's area of 
responsibility. The security zones are needed for national security 
reasons to protect the public and ports from potential subversive acts. 
Entry into these zones would be prohibited, unless specifically 
authorized by the Captain of the Port, Miami, Florida, or his 
designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before December 5, 2002.

ADDRESSES: You may mail comments and related material to Commanding 
Officer, U.S. Coast Guard, Marine Safety Office, 100 MacArthur 
Causeway, Miami Beach, FL 33139-6940. Captain of the Port (Miami) 
maintains the public docket for this rulemaking. Comments and material 
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 Miami, 100 MacArthur Causeway, Miami Beach, FL 33139 between 
7:30 a.m. and 3 p.m. Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG Jennifer Sadowski, Waterways 
Management Division Officer, Coast Guard Marine Safety Office Miami, at 
(305) 535-8750.

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 [COTP 
Miami-02-115], 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\ x 11 inches, suitable for copying. If you would like 
to know they reached us, please enclose a 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 Commanding Officer, Marine Safety 
Office Miami at the address 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 later notice in the Federal 
Register.

Background and Purpose

    The terrorist attacks of September 2001 killed thousands of people 
and heightened the need for development of various security measures 
throughout the seaports of the United States, particularly around those 
vessels and facilities which are frequented by foreign nationals and 
maintain an interest to national security. The President has continued 
the national emergencies he declared following the September 11, 2001 
terrorist attacks (67 FR 58317 (Sep. 13, 2002) (continuing national 
emergency with respect to terrorist attacks), 67 FR 59447 (Sep. 20, 
2002) (continuing national emergency with respect to persons who 
commit, threaten to commit or support terrorism)). The President also 
has found pursuant to law, including the Magnuson Act (50 U.S.C. 191 et 
seq.), that the security of the United States is and continues to be 
endangered following the attacks (E.O. 13,273, 67 FR 56215 (Sep. 3, 
2002) (security endangered by disturbances in international relations 
of U.S and such disturbances continue to endanger such relations)). 
Following these attacks by well-trained and clandestine terrorists, 
national security and intelligence officials have warned that future 
terrorist attacks are likely. The Captain of the Port (COTP) of Miami 
has determined that there is an increased risk that subversive activity 
could be launched by vessels or persons in close proximity to the Ports 
of Palm Beach, Miami, Port Everglades, and Key West, Florida. These 
security zones are necessary to protect the public, ports, and 
waterways of the United States from potential subversive acts.
    The Coast Guard Captain of the Port of Miami established temporary 
security zones in these areas following the September 11, 2001 attacks. 
Those temporary rules are as follows:
    On September 11, 2001, the COTP issued a temporary final rule (TFR) 
(67 FR 9194, 9195, February 28, 2002, Docket  COTP Miami 01-
093) establishing 100-yard security zones around certain vessels in the 
Port of Palm Beach, Miami, Port Everglades, and Key West, FL, that 
expired September 25, 2001. On September 25, 2001, the COTP issued 
another TFR (67 FR 1101, January 9, 2002, COTP Miami 01-115) that 
maintained these 100-yard security zones around certain vessels in the 
Ports of Palm Beach, Miami, Port Everglades, and Key West, FL, and 
added a reference to specific points (buoys) where moving zones were 
activated and deactivated. This second TFR expired on June 15, 2002.
    On October 7, 2001, the COTP issued a TFR (67 FR 6652, February 13, 
2002, COTP Miami 01-116) establishing fixed-security zones in Port 
Everglades and Miami, FL, that expired June 15, 2002.
    On October 11, 2001, the COTP issued a TFR (67 FR 4177, January 29, 
2002, COTP Miami 01-122) establishing a fixed-security zone for Port 
Everglades, FL, that expired June 15, 2002.
    All of the above security zones were extended by a TFR issued on 
June 13, 2002 (67 FR 46389, COTP Miami-02-054) until December 15, 2002. 
That temporary final rule requested comments. As of June 26, 2002, the 
Coast Guard has not received any comments on that TFR.

[[Page 67343]]

Discussion of Proposed Rule

    The COTP Miami proposes to combine the security zones discussed 
above into a permanent rule. These zones are described below in the 
same order as they would appear in the proposed regulation, 33 CFR 
165.761.
    Fixed and Moving Security Zones Around Vessels in the Ports of Palm 
Beach, Port Everglades, Miami, and Key West--Paragraph (a)(1) of this 
proposed rule would create 100-yard fixed and moving security zones in 
the Port of Palm Beach, Palm Beach, FL; Port Everglades, Fort 
Lauderdale, FL; Port of Miami, Miami, FL; and Port of Key West, Key 
West, FL. These security zones would be activated when a passenger 
vessel, a vessel carrying cargoes of particular hazard or when a 
liquefied hazardous gas (LHG) vessel as defined in 33 CFR parts 120, 
126 and 127 respectively, enter or moor within one of these Ports. The 
security zones would be activated when a subject vessel passes the sea 
buoy for inbound transits, and is deactivated when the vessel departs 
the port and passes the sea buoy.
    Fixed Security Zone in the Port of Miami--Paragraph (a)(2) of this 
proposed rule would create a fixed security zone encompassing all 
waters between the Port of Miami and MacArthur Causeway. The fixed 
security zone would be activated when two or more passenger vessels, 
vessels carrying cargoes of particular hazard, or vessels carrying 
liquefied hazardous gas (LHG) as defined in 33 CFR parts 120, 126, and 
127 respectively, enter or moor within this zone.
    Fixed Security Zones in Port Everglades--Paragraph (a)(3) of this 
proposed rule would create a fixed security zone encompassing the 
waters of the Intracoastal Waterway between the northern tip of Port 
Everglades berth 22 and a point directly east across the Intracoastal 
Waterway; and a line drawn from the corner of Port Everglades berth 29 
at point easterly across the Intracoastal Waterway to John U. Lloyd 
Beach, State Recreational Area. The fixed security zone would be 
activated when a passenger vessel, a vessel carrying cargoes of 
particular hazard or a liquefied hazardous gas (LHG) vessel as defined 
in 33 CFR parts 120, 126 and 127 respectively, enter or moor within 
this zone.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 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). The Coast Guard expects the economic 
impact of this rule to be so minimal that a full Regulatory Evaluation 
under paragraph 10e of the regulatory policies and procedures of DOT is 
unnecessary because we anticipate these security zones may only impact 
vessel traffic for short periods of times. Alternate vessel traffic 
routes have also been accounted for to assist in minimizing delays. 
Also, the Captain of the Port of Miami may allow persons or vessels to 
enter a security zone on a case-by-case basis.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this proposed rule would have a significant economic 
effect upon 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 because we anticipate these security zones may 
only impact vessel traffic for short periods of times. Alternate vessel 
traffic routes have also been identified to assist in minimizing 
delays. Also, the Captain of the Port of Miami may allow persons or 
vessels to enter a security zone on a case-by-case basis. 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 section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact LTJG Jennifer Sadowski at (305) 
535-8750.

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 rule has implication 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. Although 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 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 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.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant

[[Page 67344]]

Instruction M16475.1D, this rule is categorically excluded from further 
environmental documentation because no environmental changes will be 
affected with the security zone implementation. A ``Categorical 
Exclusion Determination'' is available in the docket where indicated 
under ADDRESSES.

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. We 
invite your comments on how this rule might impact tribal governments, 
even if that 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports 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. 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 new Sec.  165.761 to read as follows:


Sec.  165.761  Security Zones; Port of Palm Beach, Port Everglades, 
Port of Miami, and Port of Key West, Florida.

    (a) Location. The following areas are security zones:
    (1) Fixed and moving security zones around vessels in the Ports of 
Palm Beach, Port Everglades, Miami, and Key West--Moving security zones 
are established 100 yards around all passenger vessels, vessels 
carrying cargoes of particular hazard, or vessels carrying liquefied 
hazardous gas (LHG) as defined in 33 CFR parts 120, 126 and 127 
respectively, during transits entering or departing the Ports of Palm 
Beach, Port Everglades, Miami or Key West, Florida. These moving 
security zones are activated when the subject vessel passes: ``LW'' 
buoy, at approximate position 26[deg]46.3[min] N, 080[deg]00.6[min] W, 
when entering the Port of Palm Beach, passes ``PE'' buoy, at 
approximate position 26[deg]05.5[min] N, 080[deg]04.8[min] W, when 
entering Port Everglades; the ``M'' buoy, at approximate position 
25[deg]46.1[min] N, 080[deg]05.0[min] W, when entering the Port of 
Miami; and ``KW'' buoy, at approximate position 24[deg]27.7[min] N, 
081[deg]48.1[min] W, when entering the Port of Key West. Fixed security 
zones are established 100 yards around all passenger vessels, vessels 
carrying cargoes of particular hazard or liquefied hazardous gas (LHG) 
as defined in 33 CFR parts 120, 126 and 127 respectively, while they 
are docked in the Ports of Palm Beach, Port Everglades, Miami or Key 
West, Florida.
    (2) Fixed security zone in the Port of Miami--A fixed security zone 
encompasses all waters between Watson Park and Star Island on the 
MacArthur Causeway south to the Port of Miami. The western boundary is 
formed by an imaginary line from points 25[deg]46.79[min] N, 
080[deg]10.90[min] W, to 25[deg]46.77[min] N, 080[deg]10.92[min] W to 
25[deg]46.88[min] N, 080[deg]10.84[min] W, and ending on Watson Park at 
25[deg]47.00[min] N, 080[deg]10.67[min] W. The eastern boundary is 
formed by an imaginary line from the traffic light located at Bridge 
road, in approximate position 25[deg]46.33[min] N, 080[deg]09.12[min] 
W, which leads to Star Island, and MacArthur Causeway directly 
extending across the Main Channel to the Port of Miami, at 
25[deg]46.26[min] N, 080[deg]09.18[min] W. The fixed security zone is 
activated when two or more passenger vessels, vessels carrying cargoes 
of particular hazard, or vessels carrying liquefied hazardous gas (LHG) 
as defined in 33 CFR parts 120, 126 and 127 respectively, enter or moor 
within this zone.
    (i) Vessels may be allowed to transit the Main Channel when only 
one passenger vessel or vessel carrying cargoes of particular hazard 
are berthed, by staying on the north side of the law enforcement boats 
and cruise ship tenders which will mark a transit lane in channel.
    (ii) When passenger vessels are not berthed on the Main Channel, 
navigation will be unrestricted. Law enforcement vessels can be 
contacted on VHF Marine Band Radio, Channel 16 (156.8 MHz).
    (3) Fixed security zones in the Port Everglades--A fixed security 
zone encompasses all waters west of an imaginary line starting at the 
northern most point 26[deg]05.98[min] N, 080[deg]07.15[min] W, near the 
west side of the 17th Street Causeway Bridge, to the southern most 
point 26[deg]05.41[min] N, 080[deg]06.96[min] W, on the northern tip of 
pier 22. An additional fixed security zone encompasses the Intracoastal 
Waterway between a line connecting point 26[deg]05.41[min] N, 
080[deg]06.97[min] W, on the northern tip of berth 22 and a point 
directly east across the Intracoastal Waterway to 26[deg]05.41[min] N, 
080[deg]06.74[min] W; and a line drawn from the corner of Port 
Everglades berth 29 at point 26[deg]04.72[min] N, 080[deg]06.92[min] W, 
easterly across the Intracoastal Waterway to John U. Lloyd Beach, State 
Recreational Area at point 26[deg]04.72[min] N, 080[deg]06.81[min] W.
    (i) Vessels may be allowed to transit the Intracoastal Waterway 
when passenger vessels or vessels carrying cargoes of particular hazard 
are berthed, by staying east of the law enforcement boats and cruise 
ship tenders, which will mark a transit lane in the Intracoastal 
Waterway.
    (ii) Periodically, vessels may be required to temporarily hold 
their positions while large commercial traffic operates in this area. 
Vessels in this security zone must follow the orders of the COTP or his 
designated representative, who may be embarked in law enforcement or 
other vessels on scene. When passenger vessels are not berthed on the 
Intracoastal Waterway, navigation will be unrestricted. Law enforcement 
vessels can be contacted on VHF Marine Band Radio, Channel 16 (156.8 
MHz).
    (b) Regulations. (1) Prior to commencing the movement, the person 
directing the movement of a passenger vessel, a vessel carrying cargoes 
of particular hazard or when a vessel carrying liquefied hazardous gas 
(LHG) as defined in Title 33, Code of Federal Regulations parts 120, 
126 and 127 respectively, are encouraged to make a security broadcast 
on VHF Marine Band Radio, Channel 13 (156.65 MHz) to advise mariners of 
the moving security zone activation and intended transit.
    (2) In accordance with the general regulations Sec.  165.33 of this 
part, entry

[[Page 67345]]

into these zones is prohibited except as authorized by the Captain of 
the Port Miami or his designated representative. Other vessels such as 
pilot boats, cruise ship tenders, tug boats and contracted security 
vessels may assist the Coast Guard Captain of the Port under the 
direction of his designated representative by monitoring these zones 
strictly to advise mariners of the restrictions. The Captain of the 
Port will notify the public via Marine Safety Radio Broadcast on VHF 
Marine Band Radio, Channel 13 (156.65 MHz) when the security zones are 
being enforced.
    (3) Persons desiring to enter or transit the area of the security 
zone may contact the Captain of the Port on VHF Marine Band Radio, 
Channel 16 (156.8 MHz) to seek permission to transit the area. If 
permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his or her designated 
representative.
    (4) The Captain of the Port Miami may waive any of the requirements 
of this subpart for any vessel upon finding that the vessel or class of 
vessel, operational conditions, or other circumstances are such that 
application of this subpart is unnecessary or impractical for the 
purpose of port security, safety or environmental safety.
    (c) Definition. As used in this section, cruise ship means a 
passenger vessel greater than 100 feet in length and over 100 gross 
tons that is authorized to carry more than 12 passengers for hire 
making voyages lasting more than 24 hours, except for a ferry.
    (d) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

    Dated: October 16, 2002.
J.A. Watson, IV,
Captain, U.S. Coast Guard, Captain of the Port Miami.
[FR Doc. 02-28089 Filed 11-4-02; 8:45 am]
BILLING CODE 4910-15-P