[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Proposed Rules]
[Pages 9039-9042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4635]


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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]
BILLING CODE 4910-15-P