[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Proposed Rules]
[Pages 36122-36124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13006]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-045]
RIN 2115-AA97


Safety and Security Zones; Portsmouth Harbor, Portsmouth, NH

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish 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 
proposes to establish 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, without the express permission of the Captain of 
the Port, Portland, Maine or his authorized patrol representative, is 
strictly prohibited.

DATES: Comments and related materials much reach the U. S. Coast Guard 
on or before July 22, 2002.

ADDRESSES: You may mail comments and related material to Marine Safety 
Office, Portland, 103 Commercial Street, Portland, Maine 04101. The 
Port Operations Department maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at Marine Safety Office 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, 
Port Operations Department, Captain of the Port, Portland, Maine at 
(207) 780-3251.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking CGD01-02-
045, indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Marine Safety Office Portland, 
Maine at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

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 possible. Due to these heightened security 
concerns, safety and security zones are prudent for Liquefied Petroleum 
Gas (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.
    On November 20, 2001, a temporary final rule (TFR) entitled 
``Safety and Security Zones; LPG Transits, Portland, Maine Marine 
Inspection Zone and Captain of the Port Zone'' was published in the 
Federal Register (66 FR 58064). This TFR, effective from November 9, 
2001 until June 21, 2002, suspended 33 CFR 165.103 and temporarily 
established the safety and security zone being permanently proposed by 
this Notice of Proposed Rulemaking (NPRM). The TFR has been extended 
until August 15, 2002 to allow time to develop the permanent rule being 
proposed (67 FR 30807, May 8, 2002).

Discussion of Proposed Rule

    This rulemaking proposes to establish safety and security zones in 
a radius around LPG vessels while the vessels are moored at the LPG 
receiving facility on the Piscataqua River in Newington, New Hampshire. 
It would also create moving safety and security zones any time a LPG 
vessel is within the 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, the navigable waters of the United States include 
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 baseline of the 
United States determined in accordance with international law.
    This rulemaking proposes to establish safety and security zones 
with identical boundaries covering the following areas of the Captain 
of the Port, Portland, Maine 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 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 Captain of the 
Port, Portland, Maine zone, all waters one mile ahead, one half mile 
astern, and 1000-yards on

[[Page 36123]]

either side of any Liquefied Petroleum Gas vessel.
    This proposed rulemaking would revise a current safety zone for 
transits of tank vessels carrying Liquefied Petroleum Gas in Portsmouth 
Harbor, Portsmouth, New Hampshire. Title 33 CFR 165.103 currently 
provides for a safety zone 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 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). 
Title 33 CFR 165.103 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 are possible. Due to the flammable nature of 
LPG vessels and the impact 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 165.103, this proposed rulemaking would 
provide increased protection for LPG vessels as follows: It would 
establish 500-yard safety and security zones around LPG vessels while 
moored at the LPG receiving facility on the Piscataqua River, 
Newington, New Hampshire. It would also provide continuous protection 
for LPG vessels by establishing safety and security zones 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 Captain of the Port, Portland, Maine 
zone rather than limiting the protection to vessels carrying LPG that 
are transiting to and from the facility. It would also extend 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 proposed rulemaking also 
recognizes the safety concerns associated with an unloaded LPG vessel. 
Currently, 33 CFR 165.103 only establishes a safety zone around a 
loaded LPG tank vessel or while the vessel is transferring its cargo. 
This proposed rulemaking would establish safety and security zones 
around any LPG vessel, loaded or unloaded, any time a LPG vessel is 
located in 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. These proposed zones would provide necessary protection 
to unloaded vessels, which continue to pose a safety and security 
hazard due to ignition of the vapor material. This proposed 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 would be able to enter or remain in the 
proposed 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 would be required to obey any direction or 
order of the Captain of the Port, Portland, Maine. The Captain of the 
Port, Portland, Maine would be able to 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 would be able to 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.
    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 $250,000), in rem liability against the 
offending vessel, and license sanctions.

Regulatory Evaluation

    This proposed rulemaking 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 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: (a) The proposed safety and security zones would 
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 (b) while the LPG vessel is 
transiting the Piscataqua River, maritime advisories would be broadcast 
to advise the maritime community of the safety and security zones, 
allowing vessels to plan their safe navigation around the zones (c) the 
proposed safety and security zones while the vessel is moored at the 
LPG receiving facility on the Piscataqua River, Newington, New 
Hampshire, would be small enough to allow vessels to navigate safely 
around the zones without delay.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601--612), we have 
considered whether this proposed 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 enumerated in the Regulatory Evaluation section 
above, the Coast Guard certifies under 5 U.S.C. 605 (b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. There is no indication the 
present rule has been burdensome on the maritime public. No letters 
commenting on the present rule have been received from the public.
    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. 104-121), we want to assist small 
entities in understanding this proposed 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 Lieutenant

[[Page 36124]]

(Junior Grade) W. W. Gough, Port Operations Department, Captain of the 
Port, Portland, Maine at (207) 780-3251.

Collection of Information

    This proposed rule would call 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 proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

Taking of Private Property

    This proposed 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 proposed 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 proposed rule under Executive 
Order 13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This proposed 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 proposed 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 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 proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

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. A ``Categorical Exclusion 
Determination'' is available in the docket where indicated under 
ADDRESSES.

Energy Effects

    The Coast Guard has analyzed this proposed 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 proposes 
to amend 33 CFR part 165 as follows:
    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. Revise  165.103 to read as follows:


 165.103  Safety and Security Zones; LPG Vessel Transits in 
Captain of the Port Portland, Maine 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 (LPG) vessel while it is moored at the LPG 
receiving facility on the Piscataqua River, Newington, New Hampshire; 
and (2) except as provided in paragraph (a)(1) of this section, in the 
waters of the Captain of the Port, Portland, Maine 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 
 165.23 and 165.33 of this part, entry into or 
movement within these zones 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.
    (3) No person may swim upon or below the surface of the water 
within the boundaries of the safety and security zones unless 
previously authorized by the Captain of the Port, Portland, Maine or 
his authorized patrol representative.

    Dated: May 13, 2002.
M.P. O'Malley,
Commander, Coast Guard, Captain of the Port, Portland, ME.
[FR Doc. 02-13006 Filed 5-22-02; 8:45 am]
BILLING CODE 4910-15-P