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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [USCG-2010-0864]
          - RIN 1625-AA87

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# 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                               ( print 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                         *Edward.G.LeBlanc@uscg.mil.*                         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                           ( print 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

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

1. The authority citation for part 165 continues to read as follows: 

      ( print 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.

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

§ 165.T01-0864 

                            (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 § 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