[Federal Register Volume 76, Number 65 (Tuesday, April 5, 2011)]
[Proposed Rules]
[Pages 18674-18677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8003]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes a permanent regulation that would 
create security zones around cruise ships in the Southeastern New 
England Captain of the Port (COTP) Zone. These security zones are 
nearly identical to security zones currently put in place by a 
temporary final rule. The proposed rule would create 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: Comments and related material must be received by the Coast 
Guard on or before May 5, 2011. Requests for public meetings must be 
received by the Coast Guard on or before April 12, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0803 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

[[Page 18675]]

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. 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 proposed 
rule, call Mr. Edward G. LeBlanc, Chief, Waterways Management Division, 
Coast Guard Sector Southeastern New England, at 401-435-2351, or 
<a href="/cdn-cgi/l/email-protection#0b4e6f7c6a796f254c25476e49676a65684b7e78686c25666267"><span class="__cf_email__" data-cfemail="95d0f1e2f4e7f1bbd2bbd9f0d7f9f4fbf6d5e0e6f6f2bbf8fcf9">[email protected]</span></a>. 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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-0803), 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 http://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, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2010-0803'' in the ``Keyword'' box. 
Click ``Search'' 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 comments 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 
the 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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-0803'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit 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. 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 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.

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 proposes a permanent 
regulation that would create security zones for specified navigable 
waters around certain cruise ships in the Southeastern New England 
Captain of the Port Zone. On September 22, 2010, the COTP issued a 
temporary final rule that created nearly identical security zones in 33 
CFR 165.T01-0864. 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 in effect through October 1, 2011.

Discussion of Proposed Rule

    The Coast Guard proposes to establish 100-yard radius security 
zones encompassing all navigable waters around cruise ships that are 
moored, at any berth or at anchor within the Southeastern New England 
COTP Zone. This notice of proposed rulemaking also proposes to 
establish 200-yard radius moving security zones encompassing all 
navigable waters around escorted cruise ships while underway in the 
navigable waters within the Southeastern New England COTP zone. We 
propose to define a ``cruise ship'' as a passenger vessel (as defined 
in 46 U.S.C. 2101(22)) that is authorized to carry more than 400 
passengers for hire and is 200 feet or more in length. This definition 
of ``cruise ship'' will include ferries (as defined in 46 CFR 2.10-25) 
that are authorized to carry more than 400 passengers for hire and are 
200 feet or more in length. This proposed zone would be activated and 
subject to enforcement at all times a cruise ship is underway, anchored 
or moored within the navigable waters of the United States in the 
Southeastern New England COTP Zone.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses

[[Page 18676]]

based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This proposed rule would not be a significant regulatory action 
under section 3(f) of Executive Order 12866, Regulatory Planning and 
Review, and would 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 proposed 
security zones would 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 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. These proposed security zones would 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 with may enter a security zone if they obtain permission 
from the Coast Guard COTP, Southeastern New England.
    This proposed 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 proposed security zones would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. These proposed security zones are temporary, and would 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.
    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 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Mr. Edward G. LeBlanc, Chief, 
Waterways Management Division, Coast Guard Sector Southeastern New 
England, at 401-435-2351, or <a href="/cdn-cgi/l/email-protection#723716051300165c355c3e17301e131c1132070111155c1f1b1e"><span class="__cf_email__" data-cfemail="246140534556400a630a68416648454a4764515747430a494d48">[email protected]</span></a>. The Coast Guard 
will not retaliate against small entities that question or complain 
about this proposed 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 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would 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 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 proposed 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.

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

[[Page 18677]]

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.

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is 
one of a category of actions which the Coast Guard concluded do not 
normally have individual or cumulative significant effects on the human 
environment. Since the proposed action involves establishment of 
security zones, the applicable categorical exclusion is found in Figure 
2-1, paragraph 34(g) of the Commandant Instruction. 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. 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, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. 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: March 23, 2011.
V.B. Gifford, Jr.,
Captain, U.S. Coast Guard, Captain of the Port Southeastern New 
England.
[FR Doc. 2011-8003 Filed 4-4-11; 8:45 am]
BILLING CODE 9110-04-P


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