[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Rules and Regulations]
[Pages 58064-58066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28967]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-01-192]
RIN 2115-AA97


Safety and Security Zones; LPG Transits, Portland, Maine Marine 
Inspection Zone and Captain of the Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing safety and security zones in 
the Captain of the Port, Portland, Maine zone, 1 mile ahead, 1/2 mile 
astern, and 1000-yards on either side of any vessel capable of carrying 
Liquefied Petroleum Gas (LPG). This rulemaking also establishes safety 
and security zones of 500 yards around any LPG vessel while it is 
moored at the LPG receiving facility located on the Piscataqua River in 
Newington, New Hampshire. Entry or movement within these zones by any 
vessel of any description, without the express permission of the 
Captain of the Port, Portland, Maine or his authorized patrol 
representative, is strictly prohibited.

DATES: This rule is effective from November 9, 2001 through June 21, 
2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Marine Safety Office Portland, Maine, 103 
Commercial Street, Portland, Maine between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) W. W. Gough, 
Chief, Ports and Waterways Safety Branch, Port Operations Department, 
Captain of the Port, Portland, Maine at (207) 780-3251.

SUPPLEMENTARY INFORMATION:

Regulatory History

    Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) 
was not published for this regulation. Due to the catastrophic nature 
and extent of damage realized from terrorist attacks on the World Trade 
Center and Pentagon on September 11, 2001 this rulemaking is urgently 
necessary to protect the national security interests of the United 
States against future potential terrorist strikes against civilian 
targets. National security and intelligence officials warn that future 
terrorist attacks against civilian targets are possible. Due to the 
flammable nature of Liquefied Petroleum Gas (LPG) and the potential 
impact the explosion of an LPG vessel would have on Portsmouth Harbor 
and the surrounding area, the delay inherent in the NPRM process is 
contrary to public interest insofar as it would render LPG vessels in 
the Captain of the Port, Portland, Maine zone vulnerable to subversive 
activity, sabotage or attack. The delay inherent in the NPRM process is 
also unnecessary since this rulemaking is needed to protect the safety 
of the vessels, persons and others in the maritime community from the 
hazards associated with the transit and limited maneuverability of a 
large tank vessel.
    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. The measures contemplated by the 
rule are intended to prevent possible terrorist attacks against LPG 
vessels, and to protect other vessels, waterfront facilities, the 
public and the Portsmouth Harbor and surrounding areas on the 
Piscataqua River from potential sabotage or other subversive acts, 
accidents or other causes of a similar nature. In addition, the zones 
protect persons, vessels and others in the maritime community from the 
hazards associated with the transit and limited maneuverability of a 
large tank vessel. Immediate action is required to accomplish these 
objectives. Any delay in the effective date of this rule is 
impracticable and contrary to the public interest. These zones should 
have minimal impact on the users of the Captain of the Port, Portland, 
Maine zone, Bigelow Bight, Portsmouth Harbor and the Piscataqua River, 
as LPG vessel transits are infrequent. Vessels have ample water to 
transit around the zones while vessels are transiting in Bigelow Bight, 
Portsmouth Harbor and the Piscataqua River. The zones established while 
the vessel is transiting are moving safety and security zones, allowing 
vessels to transit ahead, behind, or after passage of an LPG vessel. 
Public notifications will be made prior to an LPG transit via local 
notice to mariners and marine information broadcasts.

Background and Purpose

    On September 11, 2001, two commercial aircraft were hijacked from 
Logan Airport in Boston, Massachusetts, and flown into the World Trade 
Center in New York, New York, inflicting catastrophic human casualties 
and property damage. A similar attack was conducted on the Pentagon on 
the same day. National security and intelligence officials warn that 
future terrorist attacks are likely. Due to these heightened security 
concerns, safety and security zones are prudent for LPG tank vessels, 
which may be likely targets of terrorist attacks due to the flammable 
nature of LPG and the serious impact on the Port of Portsmouth, New 
Hampshire and surrounding areas that may be incurred if an LPG vessel 
was subjected to a terrorist attack.
    This rulemaking establishes safety and security zones in a radius 
around LPG vessels while the vessels are moored at the SEA-3, Inc. LPG 
receiving facility on the Piscataqua River in Newington, New Hampshire. 
It also creates a moving safety and security zone any time an LPG 
vessel is within Captain of the Port, Portland, Maine zone, as defined 
in 33 CFR 3.05-15, in the internal waters of the United States and the 
navigable waters of the United States. Under the Ports and Waterways 
Safety Act, navigable waters of the United States includes all waters 
of the territorial sea of the United States as described in 
Presidential Proclamation No. 5928 of December 27, 1988. This 
Presidential Proclamation declared that the territorial sea of the 
United States extends to 12 nautical miles from the baselines of the 
United States determined in accordance with international law. This 
regulation establishes safety and security zones with identical 
boundaries covering the following areas of the Portland, Maine Marine 
Inspection Zone and Captain of the Port, Zone: (a) All waters of the 
Piscataqua River within a 500-yard radius of any Liquefied Petroleum 
Gas vessel while it is moored at the SEA 3, Inc. LPG receiving facility 
on the Piscataqua River, Newington, New Hampshire; and (b) except as 
provided in paragraph (a) of this section, in the waters of the 
Portland, Maine Marine Inspection Zone and Captain of the Port, Zone, 
all waters one mile ahead, one half mile astern, and 1000-yards on 
either side of any Liquefied Petroleum Gas vessel.
    This rulemaking also temporarily suspends a safety zone for 
transits of tank vessels carrying Liquefied Petroleum Gas in Portsmouth 
Harbor, Portsmouth, New Hampshire. Title 33

[[Page 58065]]

CFR 165.103 currently provides for safety zones during the transit of 
loaded LPG vessels as follows: the waters bounded by the limits of the 
Piscataqua River Channel and extending 1000-yards ahead and 500-yards 
astern of tank vessels carrying LPG vessel Liquefied Petroleum Gas 
while the vessel transits Bigelow Bight, Portsmouth Harbor, and the 
Piscataqua River to the LPG receiving facility at Newington New 
Hampshire until the vessel is safely moored and while the vessel 
transits outbound from the receiving facility through the Piscataqua 
River, Portsmouth Harbor and Bigelow Bight until the vessel passes the 
Gunboat Shoal Lighted Bell Buoy ``1'' (LLNR 185). This safety zone 
recognizes the safety concerns with transits of large tank vessels, but 
is inadequate to protect LPG vessels from possible terrorist attack, 
sabotage or other subversive acts. National security and intelligence 
officials warn that future terrorist attacks against civilian targets 
may be anticipated. Due to the flammable nature of LPG vessels and 
impact the ignition of this cargo would have on Portsmouth Harbor, 
areas along the Piscataqua River and surrounding areas, increased 
protection of these vessels is necessary. In comparison to 33 CFR 
Sec. 165.103, this rulemaking provides increased protection for LPG 
vessels as follows: it establishes 500-yard safety and security zones 
around LPG vessels while moored at the LPG receiving facility on the 
Piscataqua River, Newington, New Hampshire; and it provides continuous 
protection for LPG vessels 1 mile ahead, \1/2\ mile astern, and 1000-
yards on each side of LPG vessels anytime a vessel is within the waters 
of the Portland, Maine Marine Inspection Zone and Captain of the Port 
Zone rather than limiting the protection to vessels carrying LPG and 
which are transiting to and from the facility. It also extends the 
zones to 1000 yards on either side of the vessel rather than limiting 
the zone to the limits of the Piscataqua River Channel. The increased 
protection provided in this rulemaking also recognizes the safety 
concerns associated with an unloaded LPG vessel. 33 CFR Sec. 165.103 
only establishes safety zones around loaded LPG tank vessels or while 
the vessel is transferring its cargo. This rulemaking establishes 
safety and security zones around any LPG vessels, loaded or unloaded, 
any time a LPG vessel is located in the Portland Marine Inspection Zone 
and Captain of the Port Zone, including the internal waters and out to 
12 nautical miles from the baseline of the United States. These zones 
provide necessary protection to unloaded vessels, which continue to 
pose a safety/security hazard. This rulemaking also recognizes the 
continued need for safety zones around LPG vessels, which are necessary 
to protect persons, facilities, vessels and others in the maritime 
community, from the hazards associated with the transit and limited 
maneuverability of a large tank vessel.
    No person or vessel may enter or remain in the prescribed safety 
and security zones at any time without the permission of the Captain of 
the Port, Portland, Maine. Each person or vessel in a safety and 
security zone shall obey any direction or order of the Captain of the 
Port, Portland, Maine. The Captain of the Port, Portland, Maine may 
take possession and control of any vessel in a security zone and/or 
remove any person, vessel, article or thing from a security zone. No 
person may board, take or place any article or thing on board any 
vessel or waterfront facility in a security zone without permission of 
the Captain of the Port, Portland, Maine. These regulations are issued 
under authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 
1226.
    Any violation of any safety or security zone described herein, is 
punishable by, among others, civil penalties (not to exceed $25,000 per 
violation, where each day of a continuing violation is a separate 
violation), criminal penalties (imprisonment for not more than 10 years 
and a fine of not more than $100,000), in rem liability against the 
offending vessel, and license sanctions. In addition, this rulemaking 
provides for increased protection on each side of the vessel, extending 
the protection from the limits of the navigable channel, to 1000 yards 
on each side of any LPG vessel. This safety and security zone also 
protects vessels which are not loaded but which may continue to present 
a safety concern due to ignition of the vapor material.

Regulatory Evaluation

    This temporary final 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 
proposal to be so minimal that a full Regulatory Evaluation under 
paragraph 10e of the regulatory policies and procedures of DOT is 
unnecessary for the following reasons: This Security zone encompasses 
only a portion of the Portland Maine Marine Inspection Zone and Captain 
of the Port, Zone around the transiting LPG carrier, allowing vessels 
to safely navigate around the zones without delay and maritime 
advisories will be made to advise the maritime community of the 
Security zone when in effect.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' may include (1) small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields and (2) governmental jurisdictions with 
populations of less than 50,000.
    For the reasons addressed under the Regulatory Evaluation above, 
the Coast Guard expects the impact of this regulation to be minimal and 
certifies under 5 U.S.C. 605(b) that this final rule will not have a 
significant economic impact on a substantial number of small entities.

Collection of Information

    This rule contains no collection of information requirements under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this rule under the principles and 
criteria contained in Executive Order 13132 and have determined that 
this rule does not have sufficient federalism 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 costs without 
the Federal government's having first provided the funds to pay those 
costs. This rule will not impose an Unfunded Mandate.

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.

[[Page 58066]]

Civil Justice Reform

    This rule meets applicable standards in section 3(a) and 3(b)(2) of 
Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity and reduce burden.

Protection of Children

    The Coast Guard has 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 
concern 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. A 
rule with tribal implications has a substantial direct effect on one or 
more Indian tribe, 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.

Environment

    The Coast Guard has considered the environmental impact of this 
regulation and concluded that, under Figure 2-1, paragraph 34(g) of 
Commandant Instruction M16475.1D, this rule is categorically excluded 
from further environmental documentation.

Energy Effects

    The Coast Guard has 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), Reporting and 
recordkeeping requirements, Security measures, Waterways.

Regulation

    For the reasons set out 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.


    2. Suspend 33 CFR 165.103 from November 9, 2001 through June 21, 
2002.

    3. From November 9, 2001 through June 21, 2002, add temporary 
Sec. 165.T01-192 to read as follows:


Sec. 165.T01-192  Safety and Security Zones: LPG Carriers transits in 
Portland Marine Inspection Zone and Captain of the Port Zone, 
Portsmouth Harbor, Portsmouth New Hampshire.

    (a) Location. The following areas are safety and security zones: 
(1) All waters of the Piscataqua River within a 500-yard radius of any 
Liquefied Petroleum Gas vessel while it is moored at the SEA 3, Inc. 
LPG receiving facility on the Piscataqua River, Newington, New 
Hampshire.
    (2) Except as provided in paragraph (a)(1) of this section, in the 
internal waters of the United States and the navigable waters of the 
United States, as defined by 33 U.S.C. 1222(5), that are within the of 
the Portland, Maine, Marine Inspection Zone and Captain of the Port 
Zone, all waters one mile ahead, one half mile astern, and 1000-yards 
on either side of any Liquefied Petroleum Gas vessel.
    (b) Regulations. (1) In accordance with the general regulations in 
Secs. 165.23 and 165.33 of this part, entry into or movement within 
this zone is prohibited unless previously authorized by the Captain of 
the Port (COTP), Portland, Maine.
    (2) All persons and vessels shall comply with the instructions of 
the COTP or the designated on-scene U.S. Coast Guard patrol personnel. 
On-scene Coast Guard patrol personnel include commissioned, warrant, 
and petty officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and federal law enforcement vessels. 
Emergency response vessels are authorized to move within the zone, but 
must abide by restrictions imposed by the Captain of the Port, 
Portland, Maine.

    Dated: November 8, 2001.
M. P. O'Malley,
Commander, U.S. Coast Guard, Captain of the Port, Portland, ME.
[FR Doc. 01-28967 Filed 11-19-01; 8:45 am]
BILLING CODE 4910-15-P