2011-8003. Security Zones; Sector Southeastern New England Captain of the Port Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

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: [phone].

(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. 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 [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 81/2 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 § 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 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 [e-mail]. 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 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 § 165.123 to read as follows:

§ 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.