[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Rules and Regulations]
[Pages 14046-14049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6976]


=======================================================================
-----------------------------------------------------------------------

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: Interim rule with request comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing 50 yard 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. 
This interim rule excludes entry into the security zones by all 
vessels, with the exception of servicing pilot boats and assisting tug 
boats, without the express permission of the Captain of the Port San 
Juan or a designated representative.

DATES: This interim rule is effective April 29, 2009. Comments and 
related material must reach the Docket Management Facility on or before 
April 29, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-0070 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) 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.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. For 
instructions on submitting comments, see the ``Public Participation and 
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section 
below.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call Lieutenant Junior Grade 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

[[Page 14047]]

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.

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 provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov), or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand deliver, or mail your comment, it will be considered as 
having been received by the Coast Guard when it is received at the 
Docket Management Facility. 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.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2008-0070'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand 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 and may change this rule 
based on your comments.

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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-0070 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 
either the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation 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 USCG Sector San 
Juan, Prevention Operations Department, 5 Calle La Puntilla, San Juan, 
PR 00901, between 7:30 a.m. and 3 p.m., Monday through Friday, except 
Federal holidays. We have an agreement with the Department of 
Transportation to use the Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of 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 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 on or before April 29, 2009 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting 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.

Regulatory Information

    On September 23, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled Security Zone; Port of Mayaguez, Puerto Rico in the 
Federal Register (73 FR 54757). We received no letters commenting on 
the proposed rule. No public meeting was requested, and none was held.

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, and Frederiksted, St. Croix. 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 is establishing 
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 rule is necessary to provide for the safety of 
the port, the vessels, and the passengers and crew on the vessels.

Discussion of Comments and Changes

    Although no comments were received on the NPRM, the COTP would like 
to receive comments on a proposed change to the regulated text before 
issuing a final rule. The purpose of this change would be to clarify 
which vessels are considered cruise ship vessels.
    The pertinent sentence from the regulatory text in the NPRM reads 
as follows:

    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.
    The replacement language proposed for the final rule would read as 
follows:

    Cruise ship means any vessel over 100 gross register tons, 
carrying more than 12 passengers for hire.

    The difference between the two versions is that in the final rule, 
instead of being defined by its length, a cruise ship would be defined 
by its gross tonnage and can carry more than 12

[[Page 14048]]

passengers instead of more than 150 passengers.

Regulatory Analyses

    We developed this interim 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.

Regulatory Planning and Review

    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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary.
    This rule may have impact on the public, but these potential 
impacts will 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 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 rule will 
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 rule 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.
    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), in the NPRM 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.
    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 
(1-888-734-3247). 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 will 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 does not create an 
environmental risk to health or risk to safety that may 
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

[[Page 14049]]

systems 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 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 concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. Paragraph (34)(g) covers regulations 
establishing, disestablishing, or changing security zones. This rule 
involves establishing a security zone in the Port of Mayaguez. An 
environmental analysis checklist and a 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. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
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]13'12'' N 067[deg]10'46'' 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 any vessel over 100 gross registered tons, 
carrying more than 12 passengers for hire.
    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 Captain of the Port San Juan in the 
enforcement of the security 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 Captain of the Port 
San Juan 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.
    (d) Effective period. This section is effective on April 29, 2009.

    Dated: February 20, 2009.
E. Pino,
Captain, U.S. Coast Guard, Captain of the Port San Juan.
[FR Doc. E9-6976 Filed 3-27-09; 8:45 am]
BILLING CODE 4910-15-P