[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Rules and Regulations]
[Pages 41073-41075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17536]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0803]
RIN 1625-AA87


Security Zones; Sector Southeastern New England Captain of the 
Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing security zones around cruise 
ships in the Southeastern New England Captain of the Port (COTP) Zone. 
This final rule creates a 100-yard radius security zone encompassing 
all navigable waters around any cruise ship anchored or moored, and 
200-yard radius security zone encompassing all navigable waters around 
any cruise ship underway that is being escorted by Coast Guard or law 
enforcement agencies assisting the Coast Guard. These zones are needed 
to protect cruise ships and the public from destruction, loss, or 
injury from sabotage, subversive acts, or other malicious acts of a 
similar nature. Persons or vessels may not enter these security zones 
without permission of the COTP or a COTP designated representative.

DATES: This rule is effective August 12, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0803 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-0803 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Mr. Edward G. LeBlanc, Chief, Waterways Management Division, Coast 
Guard Sector Southeastern New England, at 401-435-2351, or 
[email protected]. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On April 5, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled Security Zones; Sector Southeastern New England Captain 
of the Port Zone in the Federal Register (76 FR 18674). We received no 
comments on the proposed rule.

Basis and Purpose

    The legal basis for this rule is 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; Department of Homeland Security Delegation No. 0170.1, 
which collectively authorizes the Coast Guard to define Security Zones.
    The Coast Guard's maritime security mission includes the 
requirement to protect cruise ships from destruction, loss, or injury 
from sabotage, subversive acts, or other malicious acts of a similar 
nature. Protecting these vessels from potential threats or harm while 
transiting, or while moored, at any berth, or at anchor in the waters 
of Southeastern New England COTP Zone is necessary to safeguard cruise 
ships and the general public. The Coast Guard is establishing a 
permanent regulation that creates security zones for all navigable 
waters around certain cruise ships in the Southeastern New England COTP 
Zone.

Background

    On September 22, 2010, the COTP Southeastern New England issued a 
temporary final rule that established 33 CFR 165.T01-0864 which created 
security zones nearly identical to the security zones created by this 
rule. See Security Zone: Passenger Vessels, Southeastern New England 
Captain of the Port Zone, 75 FR 63714, October 18, 2010. In a rule 
published March 31, 2011 (FR Doc. 2011-7640), temporary Sec.  165.T01-
0864 was extended through October 1, 2011. This final rule removes a 
temporary security zone regulation in Sec.  165.T01-0864. On April 5, 
2011, we published a notice of proposed rulemaking (NPRM) entitled 
Security Zones; Sector Southeastern New England Captain of the Port 
Zone in the Federal Register (76 FR 18674). We received no comments on 
the proposed rule.

Discussion of Comments and Changes

    No comments were received in response to the NPRM, and no changes 
from the proposed rule have been made.

Regulatory Analyses

    We developed this 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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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. These security zones will be activated and enforced 
only when a cruise ship is transiting, anchored, or moored within the 
Southeastern New England COTP zone. Persons and/or vessels may enter a 
security zone if they obtain permission from the Coast Guard COTP, 
Southeastern New England.

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

[[Page 41074]]

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. These security zones will be enforced only when a vessel is 
transiting within the Southeastern New England COTP zone (a routine 
transit is usually two hours or less), and only when enforced by Coast 
Guard law enforcement personnel. Persons and/or vessels may enter a 
security zone if they obtain permission from the Coast Guard COTP, 
Southeastern New England.
    This rule may affect the following entities, some of which might be 
small entities: The owners or operators of vessels intending to operate 
or transit within the security zones when a cruise ship is transiting, 
anchored or moored.
    These security zones will not have a significant economic impact on 
a substantial number of small entities for the following reasons. These 
security zones are temporary, and will be enforced only either when a 
vessel is transiting within the Southeastern New England COTP zone (a 
routine transit is usually two hours or less) or anchored or moored in 
the Zone. Persons and/or vessels may enter a security zone if they 
obtain permission from the Coast Guard COTP, Southeastern New England.

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.

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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause 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 will 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 will 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 
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 in accordance with Department of 
Homeland Security Management Directive 023-01 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 
that do not individually or cumulatively have a significant effect on 
the human environment. This rule is categorically excluded, under 
figure 2-1, paragraphs (34)(g) of the Instruction because it involves 
establishment of security zones. 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.

    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; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Remove Sec.  165.T01-0864 Security Zone; Escorted Passenger Vessels,

[[Page 41075]]

Sector Southeastern New England Captain of the Port Zone.

0
3. Add Sec.  165.123 to read as follows:


Sec.  165.123  Cruise Ships, Sector Southeastern New England Captain of 
the Port (COTP) Zone.

    (a) Location. The following areas are security zones: All navigable 
waters within the Southeastern New England Captain of the Port (COTP) 
Zone, extending from the surface to the sea floor:
    (1) Within a 200-yard radius of any cruise ship that is underway 
and is under escort of U.S. Coast Guard law enforcement personnel or 
designated representative, or
    (2) Within a 100-yard radius of any cruise ship that is anchored, 
at any berth or moored.
    (b) Definitions. For the purposes of this section--
    Cruise ship means a passenger vessel as defined in 46 U.S.C. 
2101(22), that is authorized to carry more than 400 passengers and is 
200 or more feet in length. A cruise ship under this section will also 
include ferries as defined in 46 CFR 2.10-25 that are authorized to 
carry more than 400 passengers and are 200 feet or more in length.
    Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been designated by the COTP to act on 
the COTP's behalf. The designated representative may be on a Coast 
Guard vessel, or onboard Federal, state, or a local agency vessel that 
is authorized to act in support of the Coast Guard.
    Southeastern New England COTP Zone is as defined in 33 CFR 3.05-20.
    (c) Enforcement. The security zones described in this section will 
be activated and enforced upon entry of any cruise ship into the 
navigable waters of the United States (see 33 CFR 2.36(a) to include 
the 12 NM territorial sea) in the Southeastern New England COTP zone. 
This zone will remain activated at all times while a cruise ship is 
within the navigable waters of the United States in the Sector 
Southeastern New England COTP Zone. In addition, the Coast Guard may 
broadcast the area designated as a security zone for the duration of 
the enforcement period via Broadcast Notice to Mariners.
    (d) Regulations. (1) In accordance with the general regulations in 
33 CFR part 165, subpart D, no person or vessel may enter or move 
within the security zones created by this section unless granted 
permission to do so by the COTP Southeastern New England or the 
designated representative.
    (2) All persons and vessels granted permission to enter a security 
zone must comply with the instructions of the COTP or the designated 
representative. Emergency response vessels are authorized to move 
within the zone, but must abide by the restrictions imposed by the COTP 
or the 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.
    (4) Upon being hailed by a U.S. Coast Guard vessel or the 
designated representative, by siren, radio, flashing light or other 
means, the operator of the vessel shall proceed as directed.
    (5) Vessel operators desiring to enter or operate within the 
security zone shall contact the COTP or the designated representative 
via VHF channel 16 or 508-457-3211 (Sector Southeastern New England 
command center) to obtain permission to do so.

    Dated: June 16, 2011.
V.B. Gifford, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Southeastern New 
England.
[FR Doc. 2011-17536 Filed 7-12-11; 8:45 am]
BILLING CODE 9110-04-P