[Federal Register Volume 67, Number 89 (Wednesday, May 8, 2002)]
[Rules and Regulations]
[Pages 30809-30811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11491]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-01-192]
RIN 2115-AA97


Safety and Security Zones; Portsmouth Harbor, Portsmouth, New 
Hampshire

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is extending the effective period of a 
temporary final rule establishing safety and security zones around 
vessels capable of carrying Liquefied Petroleum Gas (LPG) within the 
Captain of the Port, Portland, Maine zone. This change will extend the 
effective date of the temporary final rule until August 15, 2002, 
allowing time to develop a permanent rule.

DATES: Section 165.T01-192, added at 66 FR 58064 effective from 
November 9, 2001 through June 21, 2002 is extended in effect to August 
15, 2002, and is amended effective May 8, 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 04101 between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) R. F. 
Pigeon, Waterways Safety Branch, Port Operations Department, Captain of 
the Port, Portland, Maine at (207) 780-3251.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On November 20, 2001, the Coast Guard published a temporary final 
rule (TFR) entitled ``Safety and Security Zones: LPG transits, 
Portland, Maine Marine Inspection Zone and Captain of the Port Zone'' 
in the Federal Register (66 FR 58064). This rule was effective from 
November 9, 2001 through June 21, 2002. The Coast Guard did not publish 
a notice of proposed rulemaking (NPRM) for this regulation. Under 5 
U.S.C. 553 (d) (3), the Coast Guard finds that good cause exists for 
not publishing a NPRM. This original temporary rule was urgently 
required to facilitate the safe passage of Liquefied Petroleum Gas 
(LPG) vessels into the Port of Portsmouth, NH, and to protect the port 
from the inherent dangers posed by the flammable nature of LPG and the 
potential impact the explosion of a LPG vessel could have on Portsmouth 
Harbor and the surrounding area. It was anticipated that the Coast 
Guard would assess the security environment at the end of the effective 
period to determine whether continuing security precautions were 
required and, if so, to propose regulations responsive to existing 
conditions. We have determined the need for continued security 
regulations does exist. The Coast Guard will utilize the extended 
effective period of this temporary rule to engage in notice and comment 
rulemaking to develop a permanent regulation tailored to the present 
and foreseeable security environment within the Captain of the Port, 
Portland, Maine zone.
    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 this 
rule are intended to prevent possible terrorist attacks against LPG 
vessels, and to protect other vessels, waterfront facilities, the 
public, 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 are intended to 
protect persons, vessels and others in the maritime community from the 
hazards associated with the transit and limited maneuverability of a 
large tank vessel.
    The Coast Guard will be publishing a NPRM to establish permanent 
safety and security zones that are temporarily effective under this 
rule. This revision preserves the status quo within the port while 
permanent rules are developed. The present temporary rule has not been 
burdensome on the maritime public as LPG vessel transits are 
infrequent. No letters commenting on the present temporary rule have 
been received from the public.

Background and Purpose

    The September 11, 2001 terrorist attacks on New York and Washington 
D.C. inflicted catastrophic human casualties and property damage. 
National security and intelligence officials continue to warn that 
future terrorist attacks are possible. 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 a LPG vessel 
was subjected to a terrorist attack.
    The original temporary rule established safety and security zones 
in

[[Page 30810]]

a 500-yard radius around LPG vessels while the vessels were moored at 
the LPG receiving facility on the Piscataqua River in Newington, New 
Hampshire. It also created moving safety and security zones any time a 
LPG vessel was within Captain of the Port, Portland, Maine zone, as 
defined in 33 CFR 3.05-15, including the internal waters and out to 12 
nautical miles from the baseline of the United States.
    The original temporary rule also temporarily suspended a safety 
zone, defined in 33 CFR 165.103, for transits of tank vessels carrying 
LPG in Portsmouth Harbor, Portsmouth, New Hampshire. 33 CFR 165.103 
recognized the safety concerns with transits of large tank vessels, but 
was inadequate to protect LPG vessels from possible terrorist attack, 
sabotage or other subversive acts. The original temporary rule provided 
increased protection for LPG vessels by establishing 500-yard safety 
and security zones around LPG vessels while moored at the LPG receiving 
facility on the Piscataqua River, Newington, New Hampshire; and by 
providing continuous protection for LPG vessels anytime a vessel was 
within the waters of the Captain of the Port, Portland, Maine zone, 
including the internal waters and out to 12 nautical miles from the 
baseline of the United States. 33 CFR 165.103 limited protection to 
vessels carrying LPG that were transiting to and from the facility. The 
original temporary rule also extended 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 original temporary rule also recognized 
the continued need for a safety zone around LPG vessels, which is 
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.
    This rulemaking will extend the effective date of the original 
temporary rule until August 15, 2002, to allow the establishment of 
permanent safety and security zones by notice and comment rulemaking, 
while retaining the added protections implemented in the temporary 
rulemaking. Due to the infrequent arrivals of LPG vessels in the Port 
of Portsmouth, this rulemaking will not have a significant effect on 
the maritime community. Nevertheless, the flexibility to utilize the 
measures permitted by the temporary rule is vital to ensure port 
security in the present environment.

Regulatory Evaluation

    This temporary rule is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866, Regulatory Planning and 
Review, 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 for the 
following reasons: (1) These safety and security zones encompass only a 
portion of the Captain of the Port, Portland, Maine zone around the 
transiting LPG vessel, allowing vessels to safely navigate around the 
zones without delay, and (2) maritime advisories will be made in 
advance to advise the maritime community of the safety and security 
zones when in effect.
    The Coast Guard will be publishing a NPRM to establish permanent 
safety and security zones that are temporarily effective under this 
rule.

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.
    For the reasons addressed under the Regulatory Evaluation above, 
the Coast Guard expects the impact of this rule 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.

Assistance for Small Entities

    Under section 213 (a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process. 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 Lieutenant (Junior Grade) R. F. 
Pigeon, Waterways Safety Branch, Port Operations Department, Captain of 
the Port, Portland, Maine at (207) 780-3251.
    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 Agricultural 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 requirements 
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 or 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 the private sector of $100,000,000 or more in any one 
year. Though 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 effect 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.

[[Page 30811]]

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 
create 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 
because it does 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.

Environment

    The Coast Guard has considered the environmental impact of this 
rule and concluded that, under Figure 2-1, paragraph 34(g) of 
Commandant Instruction M16475.1D, this rule is categorically excluded 
from further environmental documentation. A ``Categorical Exclusion 
Determination'' is available in the docket for inspection or copying 
where indicated under ADDRESSES.

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 record 
keeping requirements, Security measures, Waterways.

Regulation

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


[Sec. 165.103  Suspended]

    2. Suspend Sec. 165.103 from June 21, 2002 through August 15, 2002.
    3. In temporary Sec. 165.T01-192 revise the section heading and add 
a new paragraph (c) to read as follows:


Sec. 165.T01-192  Safety and Security Zones; LPG Transits, Portland, 
Maine Marine Inspection Zone and Captain of the Port Zone

* * * * *
    (c) Effective dates. This section is effective from November 9, 
2001 through August 15, 2002.

    Dated: April 29, 2002.
M.P. O'Malley,
Commander, Coast Guard, Captain of the Port, Portland, ME.
[FR Doc. 02-11491 Filed 5-7-02; 8:45 am]
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