[Federal Register Volume 68, Number 15 (Thursday, January 23, 2003)]
[Rules and Regulations]
[Pages 3187-3189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1482]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 is prohibited, unless specifically authorized by the Captain of 
the Port, Miami, Florida, or his designated representative.

DATES: This rule is effective February 16, 2003.

ADDRESSES: Comments and materials received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of [COTP Miami 02-115] and are 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:

Regulatory Information

    On November 5, 2002, we published a notice of proposed rule making 
(NPRM) entitled ``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'' in the Federal Register (67 FR 67342). 
We received one letter commenting on the proposed rule. No public 
hearing was requested, and none was held.

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 Act of June 15, 1917, as 
amended by the Magnuson Act of August 9, 1950 (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 December 12, 2002, 
the Coast Guard has not received any comments on that TFR.
    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 Federal 
Register publication. Delay in the effective date of this regulation 
would be contrary to public interest. The assets protected by these 
security zones present possible targets of terrorist attack due to 
their potential for large personnel casualties if struck by a terrorist 
attack. Making this rule effective less than 30 days after Federal 
Register publication is necessary to prevent a lapse between this rule 
and the temporary regulations currently in place, which would leave 
persons at these assets, and the public and surrounding communities, 
vulnerable to sabotage or other subversive acts, accidents, or other 
events of a similar nature.

Discussion of Comments and Changes

    The Coast Guard received one comment on the proposed rule 
consisting of two points. The comment stated that the security zone 
will bankrupt his business as a mobile vendor on the Mallory Docks in 
Key West and the security zone interferes with his ability to 
recreationally dive in the harbor. Landside restricted areas are 
established by local police as opposed to the United States Coast Guard 
and therefore, this security zone does not affect any land based mobile 
vendor businesses. The security zones around

[[Page 3188]]

passenger vessels, vessels carrying cargoes of particular hazard, or 
vessels carrying liquid hazardous gas as defined in 33 CFR parts 120, 
126, and 127 respectively, are established for the national security 
and safety and security of the public. Recreational diving in Key West 
Harbor may be conducted at any time as long as the 100-yard security 
zone around these particular vessels is not entered. Additionally, the 
commenter may ask the Captain of the Port of Miami for permission to 
enter the security zone on a case-by-case basis. The Coast Guard has 
evaluated these comments and has decided not to change the proposed 
rule.

Regulatory Evaluation

    This 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 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 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 (Pub. L. 104-121), we want to assist small 
entities in understanding this 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 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 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 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 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 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.

Environment

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

[[Page 3189]]


    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 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, Florida. 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, Florida. 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' N, 080[deg]07.15' W, near the west 
side of the 17th Street Causeway Bridge, to the southern most point 
26[deg]05.41' N, 080[deg]06.96' 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' N, 080[deg]06.97' W, on 
the northern tip of berth 22 and a point directly east across the 
Intracoastal Waterway to 26[deg]05.41' N, 080[deg]06.74' W; and a line 
drawn from the corner of Port Everglades berth 29 at point 
26[deg]04.72' N, 080[deg]06.92' W, easterly across the Intracoastal 
Waterway to John U. Lloyd Beach, State Recreational Area at point 
26[deg]04.72' N, 080[deg]06.81' 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 vessels 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 a vessel carrying liquefied hazardous gas (LHG) 
as defined in Title 33, Code of Federal Regulations parts 120, 126 and 
127 respectively, is 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 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 16 (156.8 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 at (305) 535-8701 or 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: December 23, 2002.
J.A. Watson, IV,
Captain, Coast Guard, Captain of the Port Miami.
[FR Doc. 03-1482 Filed 1-22-03; 8:45 am]
BILLING CODE 4910-15-P