[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Rules and Regulations]
[Pages 63714-63717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26099]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2010-0864]
RIN 1625-AA87


Security Zone: Passenger Vessels, Sector Southeastern New England 
Captain of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary fixed and moving 
security zones around passenger vessels in the Sector Southeastern New 
England Captain of the Port Zone. A fixed security zone will be in 
effect within a maximum 100-yard radius of any passenger vessel 
anchored, moored, or in the process of mooring and a moving security 
zone up to 200 yards for any passenger vessel underway being escorted 
by Coast Guard or forces under Coast Guard control (such as assisting 
law enforcement agencies). These zones are needed to protect

[[Page 63715]]

passengers, vessels and the public from destruction, loss, or injury 
from sabotage, subversive acts, or other malicious acts of a similar 
nature. This temporary final rule is an interim measure while a 
permanent rulemaking process is pursued separately under docket USCG-
2010-0803.

DATES: This rule is effective in the CFR from October 18, 2010 until 
April 1, 2011. This rule is effective with actual notice for purposes 
of enforcement from September 22, 2010, until 8 a.m. on April 1, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0864 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0864 in the 
``Keyword'' box, and then clicking ``Search''. They are 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 
temporary rule, call or e-mail Mr. Edward G. LeBlanc at Sector 
Southeastern New England; telephone (401) 435-2351, e-mail 
<a href="/cdn-cgi/l/email-protection#692c0d1e081b0d472e47250c2b0508070a291c1a0a0e47040005"><span class="__cf_email__" data-cfemail="084d6c7f697a6c264f26446d4a6469666b487d7b6b6f26656164">[email protected]</span></a>. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because these temporary security zones are a 
necessary and key component of the Coast Guard's maritime security 
mission in Southeastern New England, and a separate notice of proposed 
rulemaking will be pursued, where the public will be afforded ample 
opportunity to comment. Delaying the effective date of this rule to 
provide a public notice and comment period for this temporary final 
rule is contrary to national security concerns and the public interest.
    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. Any delay encountered in this 
temporary rule's effective date would be contrary to the public 
interest given the need to protect passenger vessels from destruction, 
loss, or injury from sabotage, subversive acts, or other malicious acts 
of a similar nature.

Basis and Purpose

    The Coast Guard's maritime security mission includes the 
requirement to protect passenger vessels 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 Sector Southeastern New England Captain of The Port Zone is 
necessary to safeguard passengers, vessels, and the general public.

Discussion of Rule

    This regulation establishes temporary fixed security zones that 
will be in effect in the navigable waters within a maximum 100-yard 
radius around passenger vessels that are moored, or in the process of 
mooring, at any berth or at anchor within the Sector Southeastern New 
England Captain of the Port Zone. This regulation also establishes 
fixed moving security zones that will be in effect in the navigable 
waters up to 200 yards around escorted passenger vessels while underway 
in the navigable waters within the Sector Southeastern New England 
Captain of the Port Zone. The definition of passenger vessels to which 
these zones apply are passenger vessels over 100 gross tons authorized 
to carry more than 500 passengers for hire making voyages, any part of 
which is on the high seas, and for which passengers are embarked, 
disembarked or pay a port call, in the Sector Southeastern New England 
Captain of the Port Zone. These high-capacity passenger vessels 
typically are greater than 200 feet in length and have multiple decks. 
These security zones are necessary to safeguard passenger vessels, 
persons aboard passenger vessels, the public, waterways, ports, and 
adjacent facilities in the Sector Southeastern New England Captain of 
the Port Zone.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders relating 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.
    The Coast Guard expects the economic impact of this rule to be so 
minimal that a full regulatory evaluation under the regulatory policies 
and procedures of DHS is unnecessary. The effect of this rule will not 
be significant. Temporary moving security zones will only be in effect 
while escorted passenger vessels are underway, and the zone will not 
restrict any waterway for a long period of time. The vast majority of 
passenger vessel transits in the waters of Sector Southeastern New 
England Captain of the Port Zone are less than two hours. Temporary 
fixed security zones around passenger vessels that are moored, or in 
the process of mooring, at any berth or at anchor are anticipated to 
have minimal impact on vessel traffic because such vessels anchored or 
moored in designated anchorages or at waterfront facilities are away 
from navigation channels used by mariners. Additionally, vessels may be 
permitted to enter these security zones with expressed permission of 
the Captain of the Port, minimizing any adverse impact. It has been 
determined that the necessary security enhancements provided by this 
rule greatly outweigh any potential negative impacts.

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 may affect the following entities, some of which may be 
small entities: The owners and operators of vessels intending to 
transit the waters of Sector Southeastern New England Captain of the 
Port Zone while the

[[Page 63716]]

security zones are enforced. These security zones will not have a 
significant impact on a substantial number of small entities for the 
following reasons: The moving security zones will only be enforced when 
an escorted passenger vessel is underway, and such transits in the 
Sector Southeastern New England Captain of the Port Zone are typically 
less than two hours in duration; the fixed security zones around 
passenger vessels moored, or in the process of mooring, at a berth or 
at anchorage, allow for vessel traffic to transit the navigable waters 
outside the zone. Additionally, vessels may be permitted to enter these 
security zones with the express prior permission of the Captain of the 
Port, minimizing any adverse impact.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer 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 you 
think your small business or organization would be affected by this 
rule and you have any questions concerning its provisions or options 
for compliance, please call Mr. Edward G. Leblanc at (401) 435-2351.
    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 (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 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 
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 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 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. This rule fits the category selected from 
paragraph (34)(g), as it establishes a temporary security zone for a 
limited period of time. A final ``Environmental Analysis Check List'' 
and a final ``Categorical Exclusion Determination'' will be available 
in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and 
recordkeeping requirements, Security measures, and 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:


[[Page 63717]]


    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, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0864 to read as follows:


Sec.  165.T01-0864  Security Zone: Escorted Passenger Vessels, Sector 
Southeastern New England Captain of the Port Zone.

    (a) Location. The following areas are security zones: All navigable 
waters within the Sector Southeastern New England Captain of the Port 
Zone, extending from the surface to the sea floor, that are:
    (1) Within a maximum 200-yard radius of any passenger vessel that 
is underway and is under escort of U.S. Coast Guard law enforcement 
personnel, or
    (2) Within a maximum 100-yard radius of any passenger vessel that 
is anchored, at any berth, moored, or in the process of mooring.
    (b) Definitions. As used in this section--
    Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been designated by the Captain of the 
Port to act on his behalf. The on-scene representative may be on a 
Coast Guard vessel, or onboard a Federal, State, or local agency vessel 
that is authorized to act in support of the Coast Guard.
    Passenger vessel means any passenger vessel over 100 gross tons 
authorized to carry more than 500 passengers for hire making voyages, 
any part of which is on the high seas, and for which passengers are 
embarked, disembarked or pay a port call, in the Sector Southeastern 
New England Captain of the Port Zone.
    Sector Southeastern New England Captain of the Port Zone means the 
area defined in 33 CFR 3.05-20.
    (c) Notification. Sector Southeastern New England Captain of the 
Port will give actual notice to mariners for the purpose of enforcement 
of this temporary security zone. In addition, the Coast Guard will 
broadcast the area designated as a security zone for the duration of 
the enforcement period via Broadcast Notice to Mariners.
    (d) Effective and enforcement period. This rule is effective with 
actual notice for purposes of enforcement from September 22, 2010, 
through 8 a.m. on April 1, 2011.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into or movement within these zones is 
prohibited unless authorized by the Captain of the Port Southeastern 
New England or his designated representative.
    (2) All persons and vessels must comply with the instructions of 
the Captain of the Port or his designated representative. Emergency 
response vessels are authorized to move within the zone, but must abide 
by the restrictions imposed by the Captain of the Port or his 
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 Captain of the Port or his designated representative.
    (4) Upon being hailed by a U.S. Coast Guard vessel or his 
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 Captain of the Port or his designated 
representative via VHF channel 16 to obtain permission to do so.

    Dated: September 22, 2010.
V.B. Gifford, Jr.,
Captain, U.S. Coast Guard, Captain of the Port, Southeastern New 
England.
[FR Doc. 2010-26099 Filed 10-15-10; 8:45 am]
BILLING CODE 9110-04-P


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