Federal Register: RULES Ports and waterways safety: [33 CFR Part 165]

DEPARTMENT OF TRANSPORTATION

CFR Citation: 33 CFR Part 165

COT ID: [COTP Miami 02-115]

RIN ID: RIN 2115-AA97

NOTICE: RULES

ACTION: Ports and waterways safety:

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Security Zones; Port of Palm Beach, Palm Beach, FL; Port Everglades, Fort Lauderdale, FL; Port of Miami, Miami, FL; and Port of Key West, Key West, FL

DATES: This rule is effective February 16, 2003.

DOCUMENT SUMMARY: The Coast Guard is establishing permanent security zones throughout the Captain of the Port of Miami's area of responsibility. The security zones are needed for national security reasons to protect the public and ports from potential subversive acts. Entry into these zones is prohibited, unless specifically authorized by the Captain of the Port, Miami, Florida, or his designated representative.

SUMMARY: Palm Beach, Port Everglades, Fort Lauderdale, Miami, and Key West, FL; security zones,

SUPPLEMENTAL INFORMATION

Regulatory Information

On November 5, 2002, we published a notice of proposed rule making (NPRM) entitled ``Security Zones; Port of Palm Beach, Palm Beach FL; Port Everglades, Fort Lauderdale, FL; Port of Miami, Miami, FL; and Port of Key West, Key West, FL'' in the Federal Register (67 FR 67342). We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

Background and Purpose

The terrorist attacks of September 2001 killed thousands of people and heightened the need for development of various security measures throughout the seaports of the United States, particularly around those vessels and facilities which are frequented by foreign nationals and maintain an interest to national security. The President has continued the national emergencies he declared following the September 11, 2001 terrorist attacks (67 FR 58317 (Sep. 13, 2002) (continuing national emergency with respect to terrorist attacks), 67 FR 59447 (Sep. 20, 2002) (continuing national emergency with respect to persons who commit, threaten to commit or support terrorism)). The President also has found pursuant to law, including the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.), that the security of the United States is and continues to be endangered following the attacks (E.O. 13,273, 67 FR 56215 (Sep. 3, 2002) (security endangered by disturbances in international relations of U.S and such disturbances continue to endanger such relations)). Following these attacks by welltrained and clandestine terrorists, national security and intelligence officials have warned that future terrorist attacks are likely. The Captain of the Port (COTP) of Miami has determined that there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the Ports of Palm Beach, Miami, Port Everglades, and Key West, Florida. These security zones are necessary to protect the public, ports, and waterways of the United States from potential subversive acts.

The Coast Guard Captain of the Port of Miami established temporary security zones in these areas following the September 11, 2001 attacks. Those temporary rules are as follows:

On September 11, 2001, the COTP issued a temporary final rule (TFR) (67 FR 9194, 9195, February 28, 2002, Docket COTP Miami 01 093) establishing 100yard security zones around certain vessels in the Port of Palm Beach, Miami, Port Everglades, and Key West, FL, that expired September 25, 2001. On September 25, 2001, the COTP issued another TFR (67 FR 1101, January 9, 2002, COTP Miami 01115) that maintained these 100yard security zones around certain vessels in the Ports of Palm Beach, Miami, Port Everglades, and Key West, FL, and added a reference to specific points (buoys) where moving zones were activated and deactivated. This second TFR expired on June 15, 2002.

On October 7, 2001, the COTP issued a TFR (67 FR 6652, February 13, 2002, COTP Miami 01116) establishing fixed security zones in Port Everglades and Miami, FL, that expired June 15, 2002.

On October 11, 2001, the COTP issued a TFR (67 FR 4177, January 29, 2002, COTP Miami 01122) establishing a fixedsecurity zone for Port Everglades, FL, that expired June 15, 2002.

All of the above security zones were extended by a TFR issued on June 13, 2002 (67 FR 46389, COTP Miami02054) until December 15, 2002. That temporary final rule requested comments. As of December 12, 2002, the Coast Guard has not received any comments on that TFR.

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 Federal Register publication. Delay in the effective date of this regulation would be contrary to public interest. The assets protected by these security zones present possible targets of terrorist attack due to their potential for large personnel casualties if struck by a terrorist attack. Making this rule effective less than 30 days after Federal Register publication is necessary to prevent a lapse between this rule and the temporary regulations currently in place, which would leave persons at these assets, and the public and surrounding communities, vulnerable to sabotage or other subversive acts, accidents, or other events of a similar nature.

Discussion of Comments and Changes

The Coast Guard received one comment on the proposed rule consisting of two points. The comment stated that the security zone will bankrupt his business as a mobile vendor on the Mallory Docks in Key West and the security zone interferes with his ability to recreationally dive in the harbor. Landside restricted areas are established by local police as opposed to the United States Coast Guard and therefore, this security zone does not affect any land based mobile vendor businesses. The security zones around
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passenger vessels, vessels carrying cargoes of particular hazard, or vessels carrying liquid hazardous gas as defined in 33 CFR parts 120, 126, and 127 respectively, are established for the national security and safety and security of the public. Recreational diving in Key West Harbor may be conducted at any time as long as the 100yard security zone around these particular vessels is not entered. Additionally, the commenter may ask the Captain of the Port of Miami for permission to enter the security zone on a casebycase basis. The Coast Guard has evaluated these comments and has decided not to change the proposed rule.

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). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary because we anticipate these security zones may only impact vessel traffic for short periods of times. Alternate vessel traffic routes have also been accounted for to assist in minimizing delays. Also, the Captain of the Port of Miami may allow persons or vessels to enter a security zone on a casebycase basis.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601612), we considered whether this rule would have a significant economic effect upon a substantial number of small entities. The term ``small entities'' comprises small businesses, notforprofit 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 would not have a significant economic impact on a substantial number of small entities because we anticipate these security zones may only impact vessel traffic for short periods of times. Alternate vessel traffic routes have also been identified to assist in minimizing delays. Also, the Captain of the Port of Miami may allow persons or vessels to enter a security zone on a caseby case basis. 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. 104121), we want to assist small entities in understanding this 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 LTJG Jennifer Sadowski at (305) 5358750.

Collection of Information

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 35013520).

Federalism

A rule has implication 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. 15311538) 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 or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property

This rule will not affect 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.

Environment

We have considered the environmental impact of this rule and concluded that, under figure 21, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because no environmental changes will be affected with the security zone implementation. A ``Categorical Exclusion Determination'' is available in the docket where indicated under ADDRESSES.

Indian Tribal Governments

This 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. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a ``tribal implication'' under the Order. 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

List of Subjects in 33 CFR Part 165

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

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For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
PART 165REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.051(g), 6.041, 6.046, and 160.5; 49 CFR 1.46.

2. Add new Sec. 165.761 to read as follows:
Sec. 165.761 Security Zones; Port of Palm Beach, Port Everglades, Port of Miami, and Port of Key West, Florida.
(a) Location. The following areas are security zones:
(1) Fixed and moving security zones around vessels in the Ports of Palm Beach, Port Everglades, Miami, and Key West, Florida. Moving security zones are established 100 yards around all passenger vessels, vessels carrying cargoes of particular hazard, or vessels carrying liquefied hazardous gas (LHG) as defined in 33 CFR parts 120, 126 and 127 respectively, during transits entering or departing the Ports of Palm Beach, Port Everglades, Miami or Key West, Florida. These moving security zones are activated when the subject vessel passes: ``LW'' buoy, at approximate position 26[deg]46.3[min] N, 080[deg]00.6[min] W, when entering the Port of Palm Beach, passes ``PE'' buoy, at approximate position 26[deg]05.5[min] N, 080[deg]04.8[min] W, when entering Port Everglades; the ``M'' buoy, at approximate position 25[deg]46.1[min] N, 080[deg]05.0[min] W, when entering the Port of Miami; and ``KW'' buoy, at approximate position 24[deg]27.7[min] N, 081[deg]48.1[min] W, when entering the Port of Key West. Fixed security zones are established 100 yards around all passenger vessels, vessels carrying cargoes of particular hazard or liquefied hazardous gas (LHG) as defined in 33 CFR parts 120, 126 and 127 respectively, while they are docked in the Ports of Palm Beach, Port Everglades, Miami or Key West, Florida.
(2) Fixed security zone in the Port of Miami, Florida. A fixed security zone encompasses all waters between Watson Park and Star Island on the MacArthur Causeway south to the Port of Miami. The western boundary is formed by an imaginary line from points 25[deg]46.79[min] N, 080[deg]10.90[min] W, to 25[deg]46.77[min] N, 080[deg]10.92[min] W to 25[deg]46.88[min] N, 080[deg]10.84[min] W, and ending on Watson Park at 25[deg]47.00[min] N, 080[deg]10.67[min] W. The eastern boundary is formed by an imaginary line from the traffic light located at Bridge road, in approximate position 25[deg]46.33[min] N, 080[deg]09.12[min] W, which leads to Star Island, and MacArthur Causeway directly extending across the Main Channel to the Port of Miami, at 25[deg]46.26[min] N, 080[deg]09.18[min] W. The fixed security zone is activated when two or more passenger vessels, vessels carrying cargoes of particular hazard, or vessels carrying liquefied hazardous gas (LHG) as defined in 33 CFR parts 120, 126 and 127 respectively, enter or moor within this zone.
(i) Vessels may be allowed to transit the Main Channel when only one passenger vessel or vessel carrying cargoes of particular hazard are berthed, by staying on the north side of the law enforcement boats and cruise ship tenders which will mark a transit lane in channel. (ii) When passenger vessels are not berthed on the Main Channel, navigation will be unrestricted. Law enforcement vessels can be contacted on VHF Marine Band Radio, Channel 16 (156.8 MHz). (3) Fixed security zones in the Port Everglades. A fixed security zone encompasses all waters west of an imaginary line starting at the northern most point 26[deg]05.98' N, 080[deg]07.15' W, near the west side of the 17th Street Causeway Bridge, to the southern most point 26[deg]05.41' N, 080[deg]06.96' W, on the northern tip of pier 22. An additional fixed security zone encompasses the Intracoastal Waterway between a line connecting point 26[deg]05.41' N, 080[deg]06.97' W, on the northern tip of berth 22 and a point directly east across the Intracoastal Waterway to 26[deg]05.41' N, 080[deg]06.74' W; and a line drawn from the corner of Port Everglades berth 29 at point 26[deg]04.72' N, 080[deg]06.92' W, easterly across the Intracoastal Waterway to John U. Lloyd Beach, State Recreational Area at point 26[deg]04.72' N, 080[deg]06.81' W.
(i) Vessels may be allowed to transit the Intracoastal Waterway when passenger vessels or vessels carrying cargoes of particular hazard are berthed, by staying east of the law enforcement vessels and cruise ship tenders, which will mark a transit lane in the Intracoastal Waterway.
(ii) Periodically, vessels may be required to temporarily hold their positions while large commercial traffic operates in this area. Vessels in this security zone must follow the orders of the COTP or his designated representative, who may be embarked in law enforcement or other vessels on scene. When passenger vessels are not berthed on the Intracoastal Waterway, navigation will be unrestricted. Law enforcement vessels can be contacted on VHF Marine Band Radio, Channel 16 (156.8 MHz).
(b) Regulations. (1) Prior to commencing the movement, the person directing the movement of a passenger vessel, a vessel carrying cargoes of particular hazard or a vessel carrying liquefied hazardous gas (LHG) as defined in Title 33, Code of Federal Regulations parts 120, 126 and 127 respectively, is encouraged to make a security broadcast on VHF Marine Band Radio, Channel 13 (156.65 MHz) to advise mariners of the moving security zone activation and intended transit.
(2) In accordance with the general regulations Sec. 165.33 of this part, entry into these zones is prohibited except as authorized by the Captain of the Port Miami or his designated representative. Other vessels such as pilot boats, cruise ship tenders, tug boats and contracted security vessels may assist the Coast Guard Captain of the Port under the direction of his designated representative by monitoring these zones strictly to advise mariners of the restrictions. The Captain of the Port will notify the public via Marine Safety Radio Broadcast on VHF Marine Band Radio, Channel 16 (156.8 MHz) when the security zones are being enforced.
(3) Persons desiring to enter or transit the area of the security zone may contact the Captain of the Port at (305) 5358701 or on VHF Marine Band Radio, Channel 16 (156.8 MHz) to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representative.
(4) The Captain of the Port Miami may waive any of the requirements of this subpart for any vessel upon finding that the vessel or class of vessel, operational conditions, or other circumstances are such that application of this subpart is unnecessary or impractical for the purpose of port security, safety or environmental safety.
(c) Definition. As used in this section, cruise ship means a passenger vessel greater than 100 feet in length and over 100 gross tons that is authorized to carry more than 12 passengers for hire making voyages lasting more than 24 hours, except for a ferry. (d) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the authority for this section includes 33 U.S.C. 1226.

Dated: December 23, 2002.
J.A. Watson, IV,
Captain, Coast Guard, Captain of the Port Miami.
[FR Doc. 031482 Filed 12203; 8:45 am]
BILLING CODE 491015P

FOR FURTHER INFORMATION CONTACT LTJG Jennifer Sadowski, Waterways Management Division Officer, Coast Guard Marine Safety Office Miami, at (305) 5358750.