2011-17536. Security Zones; Sector Southeastern New England Captain of the Port Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing security zones around cruise ships in the Southeastern New England Captain of the Port (COTP) Zone. This final rule creates 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:

This rule is effective August 12, 2011.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2010-0803 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0803 in the “Keyword” box, and then clicking “Search.” This material is 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 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 the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On April 5, 2011, we published a notice of proposed rulemaking (NPRM) entitled Security Zones; Sector Southeastern New England Captain of the Port Zone in the Federal Register (76 FR 18674). We received no comments on the proposed rule.

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 is establishing a permanent regulation that creates security zones for all navigable waters around certain cruise ships in the Southeastern New England COTP Zone.

Background

On September 22, 2010, the COTP Southeastern New England issued a temporary final rule that established 33 CFR 165.T01-0864 which created security zones nearly identical to the security zones created by this rule. 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 through October 1, 2011. This final rule removes a temporary security zone regulation in § 165.T01-0864. On April 5, 2011, we published a notice of proposed rulemaking (NPRM) entitled Security Zones; Sector Southeastern New England Captain of the Port Zone in the Federal Register (76 FR 18674). We received no comments on the proposed rule.

Discussion of Comments and Changes

No comments were received in response to the NPRM, and no changes from the proposed rule have been made.

Regulatory Analyses

We developed this 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.

Executive Order 12866 and Executive Order 13563

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, 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. These security zones will 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 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. These security zones will 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 may enter a security zone if they obtain permission from the Coast Guard COTP, Southeastern New England.

This 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 security zones will not have a significant economic impact on a substantial number of small entities for the following reasons. These security zones are temporary, and will 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.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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 will not create an environmental risk to health or risk to safety that might 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 will 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 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 concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraphs (34)(g) of the Instruction because it involves establishment of security zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

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 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:

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

2. Remove § 165.T01-0864 Security Zone; Escorted Passenger Vessels, Sector Southeastern New England Captain of the Port Zone.

3. 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: June 16, 2011.

V.B. Gifford, Jr.,

Captain, U.S. Coast Guard, Captain of the Port Southeastern New England.