[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54757-54760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22242]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0070]
RIN 1625-AA87


Security Zone; Port of Mayaguez, Puerto Rico

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish moving and fixed 
security zones around cruise ships entering, departing, mooring or 
anchoring at the Port of Mayaguez, Puerto Rico. This proposed 
regulation is necessary to protect cruise ships operating in this port. 
All vessels, with the exception of servicing pilot boat and assisting 
tug boats, would be prohibited from entering the security zones without 
the express permission of the Captain of the Port San Juan or a 
designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before November 24, 2008.

[[Page 54758]]


ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-0070 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call Ensign Rachael Love of Sector San Juan, Prevention 
Operations Department at (787) 289-2071. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation (DOT) to use the Docket Management 
Facility.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0070), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and a mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, 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.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time, click on ``Search for Dockets,'' enter the docket number for 
this rulemaking (USCG-2008-0070) in the Docket ID box, and click enter. 
You may also visit either the Docket Management Facility in Room W12-
140 on the ground floor of the DOT West Building, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or the U.S. Coast Guard, 
Sector San Juan, 5 Calle La Puntilla, San Juan, Puerto Rico 00901 
between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal 
holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act, system of 
records notice regarding our public dockets in the January 17, 2008 
issue of the Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility 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

    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 the 
regulations promulgated by the President in subparts 6.01 and 6.04 of 
part 6 of title 33 of the Code of Federal Regulations.
    The Coast Guard has established similar rules in the ports of San 
Juan, St. Thomas (33 CFR 165.762), and Frederiksted (33 CFR 165.763). 
This regulation was not necessary in the past because cruise ships only 
recently began to hail at the port of Mayaguez.
    For the aforementioned reasons, the Coast Guard proposes to 
establish moving and fixed security zones to prevent vessels or persons 
from accessing the navigable waters around and under passenger vessels 
in the Port of Mayaguez, Puerto Rico. Due to the continued heightened 
security concerns, this proposed rule is necessary to provide for the 
safety of the port, the vessels, and the passengers and crew on the 
vessels.

Discussion of Proposed Rule

    This proposed rule would require all persons and vessels to remain 
at least 50 yards from any cruise ship in the Port of Mayaguez while 
the cruise ship is transiting, anchored, or moored. The main purpose of 
the proposed rule is to ensure the safety of all persons onboard the 
cruise ship, the cruise ship itself, the environment, and the Port of 
Mayaguez during a cruise ship's presence in the port.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

[[Page 54759]]

Regulatory Planning and Review

    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.
    This rule may impact the public, but these potential impacts would 
be minimized for the following reason: there is ample room for vessels 
to navigate around this proposed security zone. Also, the Captain of 
the Port San Juan may, on a case-by-case basis, allow persons or 
vessels to enter the proposed security zone.

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.
    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. This rule would affect the following 
entities, some of which might be small entities: The owners or 
operators of vessels intending to transit, anchor, or moor within 50 
yards of a cruise ship in the Port of Mayaguez. This proposed 
regulation will not have a significant impact on a substantial number 
of small entities because cruise ships infrequently visit the Port of 
Mayaguez and small vessel traffic would be able to safely transit 
around the security zones. The Captain of the Port San Juan may, on a 
case-by-case basis, allow persons or vessels to enter the proposed 
security zone.
    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 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 Ensign Rachael 
Love of Sector San Juan, Prevention Operations Department at (787) 289-
2071. 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 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 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 would 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 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. We 
invite your comments on how this proposed 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. 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 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

[[Page 54760]]

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 5100.1 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination under the Instruction that this 
action is not likely to have a significant effect on the human 
environment. An environmental analysis checklist supporting this 
preliminary determination is available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this proposed 
rule.

 List of Subjects in 33 CFR Part 165

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

    2. Add Sec.  165.778 to read as follows:


Sec.  165.778  Security Zone; Port of Mayaguez, Puerto Rico.

    (a) Security zone. A moving and fixed security zone is established 
around all cruise ships entering, departing, mooring, or anchoring in 
the Port of Mayaguez, Puerto Rico. The regulated area includes all 
waters from surface to bottom within a 50-yard radius of the vessel. 
The zone is activated when a cruise ship on approach to the Port of 
Mayaguez enters within 1 nautical mile of the Bahia de Mayaguez Range 
Front Light located in position 18[deg]13[min]12[sec] N, 
067[deg]10[min]46[sec] W. The zone is deactivated when a cruise ship 
departs the Port of Mayaguez and is no longer within 1 nautical mile of 
the Bahia de Mayaguez Range Front Light.
    (b) Definitions. As used in this section:
    Cruise ship means a passenger vessel greater than 100 feet in 
length that is authorized to carry more than 150 passengers for hire, 
except for a ferry.
    Designated representative means Coast Guard Patrol Commanders 
including Coast Guard coxswains, petty officers and other officers 
operating Coast Guard vessels and Federal, State, and local officers 
designated by or assisting the COTP San Juan in the enforcement of the 
safety zone.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, except U.S. Coast Guard or U.S. naval vessels 
and servicing pilot and tug boats.
    (c) Regulations. (1) No person or vessel may enter into the 
security zone under this section unless authorized by the Captain of 
the Port San Juan.
    (2) Vessels seeking to enter a security zone established in this 
section, may contact the COTP on VHF channel 16 or by telephone at 
(787) 289-2041 to request permission.
    (3) All persons and vessels granted permission to enter the 
security zone must comply with the orders of the COTP and designated 
on-scene U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard 
patrol personnel include commissioned, warrant, and petty officers of 
the U.S. Coast Guard.

    Dated: September 2, 2008.
E. Pino,
Captain, U.S. Coast Guard, Captain of the Port San Juan.
[FR Doc. E8-22242 Filed 9-22-08; 8:45 am]
BILLING CODE 4910-15-P