[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Rules and Regulations]
[Pages 58834-58837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22138]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-117]
RIN 1625-AA87


Security Zone; Queen Mary II Visit, Portland, ME, Captain of the 
Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a moving and fixed security 
zone around the Queen Mary II while in the Portland, Maine, Captain of 
the Port zone. This security zone is necessary to ensure public safety 
and prevent potential sabotage or terrorist acts against the vessel. 
Persons and vessels will be prohibited from entering this security zone 
without the permission of the Captain of the Port, Portland, Maine 
during the specified closure period.

[[Page 58835]]


DATES: This rule is effective from 12:01 a.m. EDT on September 27, 
2004, through 12:01 a.m. EDT on October 10, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket CGD01-04-117 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: Ensign J. B. Bleacher, Port Operations 
Department, Marine Safety Office Portland 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 increased 
risk that further subversive or terrorist activity may be launched 
against the United States, a heightened level of security has been 
established around the Queen Mary II while in the Portland, Maine, 
Captain of the Port zone. This security zone is needed to protect the 
passenger vessel, persons aboard the passenger vessel, the public, 
waterways, ports and adjacent facilities from potential sabotage or 
other subversive acts, accidents, or other events of a similar nature 
taken upon the Queen Mary II while in the Portland, Maine, Captain of 
the Port zone. 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. It is necessary and prudent 
to enact this temporary security zone in order to properly protect the 
vessel, passengers, crew and others in the maritime community from 
possible terrorist actions. Any delay in the effective date of this 
rule is impractical and contrary to the public interest.

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. The Captain of the Port, Portland, Maine, will 
notify the maritime community of the periods during which the security 
zone will be enforced. Broadcast notifications will also advise the 
maritime community of the boundaries of the zone.
    No person or vessel may enter or remain in the prescribed security 
zone at any time without the permission of the Captain of the Port, 
Portland, Maine. Each person or vessel in a security zone must obey any 
direction or order of the Captain of the Port or the designated Coast 
Guard on-scene representative. The Captain of the Port may take 
possession and control of any vessel in a security zone and/or remove 
any person, vessel, article or thing from a security zone. No person 
may board, take or place any article or thing on board any vessel or 
waterfront facility in a security zone without permission of the 
Captain of the Port. Any violation of any security zone described 
herein, is punishable by, among others, civil penalties (not to exceed 
$32,500 per violation, where each day of a continuing violation is a 
separate violation), criminal penalties (imprisonment for not more than 
6 years and a fine of not more than $250,000 for an individual and 
$500,000 for an organization), in rem liability against the offending 
vessel, and license sanctions. This regulation is established under the 
authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.
    Due to these concerns, a temporary security zone around the Queen 
Mary II is 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.

Discussion of Rule

    This rule establishes a security zone around the Queen Mary II 
while the vessel is underway, anchored, moored, or in the process of 
mooring in the Captain of the Port, Portland, Maine zone between 
September 27, 2004, and October 10, 2004. This temporary security zone 
is necessary to ensure public safety and prevent potential sabotage or 
terrorist acts against the vessel and the surrounding area.

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). We expect the economic impact of this rule to be so 
minimal that a full regulatory evaluation under the regulatory policies 
and procedures of the DHS is unnecessary.
    This rule is not significant for the following reasons: the impact 
on navigation will be for a minimal amount of time, and delays, if any, 
will be short in length as vessels will have ample space to navigate 
around the zone. Moreover, broadcast notifications will be made to the 
maritime community advising them of the boundaries of the zone and 
Coast Guard and other law enforcement assets will be on-scene to direct 
vessels away from the zone. These law enforcement assets will be 
recognizable by law enforcement insignia, markings, and warning lights.

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. This rule will affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in the zone during the specified closure period. 
However, this rule will not have a significant economic impact on a

[[Page 58836]]

substantial number of small entities due to the minimal time that 
vessels will be restricted from the area of the zone, and the vessels' 
ability to navigate safely around the zone.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 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. If this rule would affect your small business, organization or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Ensign Jarrett B. 
Bleacher at Marine Safety Office Portland, (207) 780-3251.
    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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
system practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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 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. 1226, 1231; 46 U.S.C. 701; 50 U.S.C. 191, 
195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 
116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T01-117 to read as follows:

[[Page 58837]]

Sec.  165.T01-117  Security Zone; Queen Mary II Visit, Portland, Maine, 
Captain of the Port Zone.

    (a) Location. The following area is a security zone:
    All navigable waters within the Portland, Maine, Captain of the 
Port Zone, extending from the surface to the sea floor, within a 300-
yard radius of the Queen Mary II while it is underway, anchored, 
moored, or in the process of mooring.
    (b) Effective period. This section is effective from 12:01 a.m. EDT 
on September 27, 2004, through 12:01 a.m. EDT on October 10, 2004.
    (c) Regulations. (1) In accordance with the general regulations 
contained 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 (COTP), Portland, Maine 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.
    (3) The Captain of the Port, Portland Maine or his designated 
representative will notify the maritime community of periods during 
which these zones will be enforced. Emergency response vessels are 
authorized to move within the zone, but must abide by restrictions 
imposed by the COTP or his designated representative.
    (d) Enforcement. The COTP will enforce this zone 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: September 23, 2004.
Stephen P. Garrity,
Captain, U. S. Coast Guard, Captain of the Port, Portland, Maine.
[FR Doc. 04-22138 Filed 9-30-04; 8:45 am]
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