00-28057. Security Zone; Coastal Waters Adjacent to Florida

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard, after consultation with the Department of Justice, established a security zone, restricting operation of certain vessels within the internal waters and territorial seas of the United States, adjacent to or within the State of Florida and within the boundaries of the Seventh Coast Guard District. The Coast Guard is revising the security zone to better define enforcement of the zone and the process for applying for a permit to depart the zone. This rule is necessary to provide for the safety of the United States citizens and residents and to prevent threatened disturbances of the international relations of the United States.

DATES:

This rule is effective October 13, 2000 and will terminate when the national emergency as declared by the President in Presidential Proclamation No. 6867 terminates. The Coast Guard will publish a separate document in the Federal Register announcing termination of this rule.

ADDRESSES:

Documents indicated in this preamble as being available in the docket, are part of docket [CGD07-00-091] and are available for inspection or copying at the Seventh Coast Guard District office, 909 SE. First Avenue, Miami, FL, 33131, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Steve Andersen, Seventh Coast Guard District, 909 SE First Avenue, Miami, FL 33131, Phone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Further, 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.

This rule is based upon a Presidential declaration of a national emergency. Because of recent events discussed below, immediate action is needed to protect the safety of lives and property at sea and to prevent threatened disturbance of the international relations of the United States. Therefore notice and public comment on the rule before the effective date of this rule are, impractical, unnecessary, contrary to the public interest and this rule should be made effective in less than 30 days after publication. Further, because this temporary rule involves the foreign affairs of the United States it is excepted from rulemaking procedures in accordance with 5 USC 553(a)(1).

Background and Purpose

On March 1, 1996, the President of the United States signed Proclamation No. 6867 declaring a national emergency following the February 24, 1996, shooting down of two Brothers to the Rescue aircraft by Cuban armed forces. In the Proclamation, which addressed the disturbances or threatened disturbances of United States international relations, the President authorized the Secretary of Transportation to regulate the anchorage and movement of domestic and foreign vessels. Order No. 96-3-7, signed by the Secretary of Transportation delegated this authority to the Commandant, United States Coast Guard. This authority has been further delegated to the Commander, Seventh Coast Guard District and appropriate Captains of the Port. To secure the rights and obligations of the United States and to protect its citizens and residents from the use of excessive force upon them by foreign powers, the Coast Guard on March 8, 1996 (61 FR 9348) pursuant to its regulatory authority in 50 USC 191 and as supplemented by the authority delegated to the Secretary of Transportation in the Presidential Proclamation, established a security zone.

This security zone restricted the operation of vessels within the internal waters and territorial seas of the United States, adjacent to or within the coastal waters around southern Florida. This security zone prohibited private, noncommercial vessels less than 50 meters in length from departing the security zone with the intent to enter Cuban territorial waters, absent express authorization from the Captain of the Port (COTP).

On May 14, 1997 (62 FR 26390) the Coast Guard published a temporary rule revising the security zone by additional security measures that prohibit a similar class of vessels from getting underway in or departing the security zone with the intent to enter Cuban territorial waters without express authorization from the COTP. Additionally, under the revised security zone, commercial vessels less than 50 meters in length became subject to the same restrictions as private, noncommercial vessels less than 50 meters in length.

On July 17, 1998 (63 FR 38476) the Coast Guard published a temporary rule again revising the security zone by expanding its geographic scope to the Florida peninsula, encompassing all of the internal waters and territorial seas of the United States adjacent to or within the State of Florida and within the boundaries of the Seventh Coast Guard District.

Discussion of Rule

This temporary rule further amends the security zone by providing streamlined procedures and timing guidelines for processing requests to depart the security zone. The Coast Guard shall have ten (10) calendar days from the receipt of the application to decide whether an application for written authorization will be granted or denied. Upon notification by the Coast Guard that an application has been denied, the applicant has three (3) business days in which to request a written denial notification. If such a request is made within the three (3) business days after the Coast Guard's notice of denial, the Coast Guard has fifteen (15) calendar days to provide specific, written reasons stating the basis for the denial. This amendment clarifies the procedure to be used by the Coast Guard in the handling of applications and the acceptance or denial of such applications for vessels in the security zone.

This temporary rule will also amend the security zone by adding the word “reasonable” to more accurately define the “articulable basis” standard for requesting verbal assurances that a vessel will not enter Cuban territorial waters. Officials must have a reasonable articulable basis to require a verbal assurance from a vessel owner that the vessel will not enter Cuban territorial waters, as a condition for a vessel to get underway from within the security zone, or depart from the security zone.

Finally, this temporary rule adds a new provision that states that the failure of a vessel master, owner or person in charge of a vessel within the security zone, including all auxiliary vessels, to provide requested verbal assurances shall not be used as the sole basis for seizing the vessel for forfeiture under the security zone.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). This rule is based upon a Presidential declaration of a national emergency. Further, these revisions to the rule seek to clarify the procedures, rights, and duties under the security zone.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to depart the security zone with the intent to enter Cuban territorial waters. However, this rule will not have a significant economic impact on a substantial number of small entities because it contains provisions to obtain authorization to depart the security zone.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we will assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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).

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under E.O. 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 E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Environment

The Coast Guard considered the environmental impact of this rule and concluded that under figure 2-1, of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Security measures and waterways

In consideration of the foregoing, the Coast Guard amends 33 CFR Part 165 as follows:

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

Authority: 33 USC 1231; 50 USC 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

2. In § 165.T07-013 revise paragraphs (c)(2) and (c)(3) to read as follows:

§ 165.T07-013

Security Zone : Internal waters and territorial seas adjacent to the Florida peninsula.

* * * * *

(c) * * *

(2)(i) Non-public vessels less than 50 meters (165 feet) in length and persons on board those vessels may not get underway from a berth, pier, mooring or anchorage in the security zone, or depart the security zone, with the intent to enter Cuban territorial waters without express written authorization from one of the following officials or their designees: Commander, Seventh Coast Guard District; the Captain of the Port Miami; the Captain of Port Tampa; or the Captain of the Port of Jacksonville. Upon receiving a request for written authorization, the aforementioned officials shall have ten (10) calendar days from the receipt of the application, to decide whether an application for written authorization shall be granted or denied. Upon notification by the aforementioned officials that the application has been denied, the applicant has three (3) business days in which to request a written denial notification. If such a request is made within three (3) business days after the Coast Guard's notice of denial, the aforementioned officials have fifteen (15) calendar days to provide specific, written reasons stating the basis for denial. The aforementioned officials may issue orders to control the movement of vessels to which this section applies.

(ii) Applications for permission to depart the security zone with the intent of entering Cuban territorial waters may be obtained by writing or calling Commander (oi), Seventh Coast Guard District, 909 SE First Avenue, Miami, FL 33131, phone [phone]. The completed application may be returned via mail, or facsimile to [phone]. Further, applications may be obtained from the following U.S. Coast Guard units: Marine Safety Office Miami, 100 MacArthur Causeway, Miami, FL 33139, ph. [phone]; Marine Safety Office Tampa, 155 Columbia Drive, Tampa, FL 33606, ph. [phone]; Marine Safety Office Jacksonville, 7820 Arlington Expy., Suite 400, Jacksonville, FL 32211, ph. [phone]; Coast Guard Group Key West, Florida, ph. [phone].

(3) Where there is a reasonable, articulable basis to believe a vessel to which this section applies intends to enter Cuban territorial waters, an official referenced in paragraph (c)(2) of this section may require the master, owner, or person in charge of a vessel within the security zone, including all auxiliary vessels, to provide verbal assurance that the vessel will not enter Cuban territorial waters as a condition for a vessel to get underway from a berth, pier, mooring, or anchorage in the security zone, or depart from the security zone. The failure of a vessel master, owner, or person in charge of a vessel within the Security Zone, including all auxiliary vessels, to provide requested verbal assurances shall not be used as the sole basis for seizing the vessel for forfeiture under the Security Zone. In addition, an official referenced in paragraph (c)(2) may require the master, owner, or person in charge of the vessel to identify all persons on board the vessel and provide verbal assurances that all persons on board have received actual notice of the regulations in this section.

* * * * *

Dated: October 13, 2000.

G.W. Sutton,

Captain, U.S Coast Guard, Acting Commander, Seventh Coast Guard District.