[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22303-22305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10424]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-001]
RIN 1625-AA00 [Formerly RIN 2115-AA97]


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

AGENCY: Coast Guard, DHS.

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

DATES: This rule is effective April 15, 2003.

ADDRESSES: There were no comments or material received from the public. 
However, documents indicated in this preamble as being available in the 
docket, are part of docket CGD01-03-001 and are available for 
inspection or copying at Marine Safety Office Portland, 27 Pearl 
Street, Portland, ME 04101 between 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) 780-3251.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On February 27, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Passenger Vessels, Portland, Maine, 
Captain of the Port Zone'' in the Federal Register (68 FR 9039). We 
received no letters commenting on the proposed rule. No public hearing 
was requested, and none was held.
    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 
publication in the Federal Register. The operation of international 
ferries and the arrival of passenger vessels begin in mid-April in the 
Portland, Maine, Captain of the Port zone. Due to heightened Homeland 
Security Advisory System threat levels, which have changed since this 
NPRM was first published, and the current conflict in Iraq, which has 
recently erupted, we feel it is necessary and prudent to enact this 
regulation on April 15, 2003 at the commencement of the international 
ferry and passenger vessel season, in order to properly protect these 
vessels, passengers, crew and others in the maritime community from 
possible terrorist actions.

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 operations in the Middle East 
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 necessary 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 passenger vessels or launch terrorist attacks upon said 
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 is 
establishing 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 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

[[Page 22304]]

vessels are not used as possible platforms for terrorist attacks.

Discussion of Comments and Changes

    We received no public comments subsequent to the publishing of the 
proposed rule for these security zones. However, one change has been 
made to the rule as published in the notice of proposed rulemaking. 
Under ``Definition'', we have modified the phrase ``and for which 
passengers are embarked or disembarked'' to read, ``and for which 
passengers are embarked, disembarked or pay a port call.'' We feel this 
clarification more accurately reflects the fact that this rule applies 
to any of the defined passenger vessels that are entering a port in the 
Portland, Maine, Captain Of the Port zone, whether embarking new 
passengers, disembarking current passengers or just visiting the port.

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 Homeland 
Security (DHS).
    This rule is not significant for the following reasons: (a) The 
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; and (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 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 rule will 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.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process. Lieutenant R. F. Pigeon of Marine Safety Office Portland, 
Maine was available to answer any questions regarding this rule. No 
requests for assistance were received.
    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 
(1-888-734-3427).

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 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 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 would not create an 
environmental risk to health or risk to safety that might 
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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have 
concluded that there are no factors in this case that would limit the 
use of a categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation, since implementation of

[[Page 22305]]

this action will not result in any: (1) Significant cumulative impacts 
on the human environment; (2) Substantial controversy or substantial 
change to existing environmental conditions; (3) Impacts on properties 
protected under the National Historic Preservation Act or (4) 
Inconsistencies with any Federal, State or local laws or administrative 
determinations relating to the environment. A final ``Environmental 
Analysis Checklist'' and a final ``Categorical Exclusion 
Determination'' are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.


0
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

0
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; Department of Homeland Security Delegation 
No. 0170.


0
2. Add Sec.  165.105 to read as follows:


Sec.  165.105  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, any part of which is on the 
high seas, and for which passengers are embarked, disembarked or pay a 
port call, 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: April 9, 2003.
Wyman W. Briggs,
Acting Commander, U.S. Coast Guard, Captain of the Port, Portland, 
Maine.
[FR Doc. 03-10424 Filed 4-25-03; 8:45 am]
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