[Federal Register Volume 67, Number 170 (Tuesday, September 3, 2002)]
[Rules and Regulations]
[Pages 56222-56225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22339]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-065]
RIN 2115-AA97


Safety and Security Zones; High Interest Vessel Transits, 
Narragansett Bay, Providence River, and Taunton River, RI

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing permanent safety and security 
zones around high interest vessels (HIVs) while those vessels are 
operating within Rhode Island Sound, Narragansett Bay, and the 
Providence and Taunton Rivers. This rule also establishes safety and 
security zones around HIVs and adjacent land areas while HIVs are 
moored at waterfront facilities in the Providence Captain of the Port 
zone. The safety and security zones are needed to safeguard the public, 
high interest vessels and their crews, other vessels and their crews, 
and the Port of Providence, Rhode Island from sabotage or other 
subversive acts, accidents, or other causes of a similar nature.

DATES: This rule is effective September 15, 2002.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in the preamble as being available in the docket, 
are part of docket CGD01-02-065 and are available for inspection or 
copying at U.S. Coast Guard Marine Safety Office Providence, 20 Risho 
Avenue, E. Providence, RI. between 8 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT David C. Barata at Marine Safety 
Office Providence, (401) 435-2345.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On December 12, 2001, we published a temporary final rule (TFR) 
entitled ``Safety And Security Zones: High Interest Vessel Transits, 
Narragansett Bay, Providence River, and Taunton River, RI'' in the 
Federal Register (66 FR 64144-64146). The effective period for this 
rule was from October 6, 2001, until June 15, 2002. The original TFR 
was urgently required to prevent possible terrorist strikes against 
high interest vessels (HIVs) within and adjacent to Rhode Island Sound, 
Narragansett Bay, and the Providence and Taunton Rivers.
    It was anticipated that we 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 determined the need for continued 
security regulations existed and issued a change to the effective 
period in the Federal Register (67 FR 35035, May 17, 2002). The Coast 
Guard used the extended effective period of the TFR to engage in notice 
and comment rulemaking to develop permanent regulations tailored to the 
present and foreseeable security environment within the COTP Providence 
Zone.
    On June 20, 2002, the Coast Guard published a notice of proposed 
rulemaking (NPRM) to propose to make permanent the temporary safety and 
security zones created and then extended by TFRs (66 FR 64144, December 
12, 2001, and 67 FR 35035, May 17, 2002). The last date for submitting 
comments and related materials on the proposed permanent rule was 
August 5, 2002.
    We received no letters commenting on the proposed rule. No public 
hearing was requested, and none was held. This final rule makes 
effective the safety and security measures that have been in place on a 
temporary basis since October 2001.
    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. Any delay in the effective date of 
this regulation would be contrary to the public interest since prompt 
action is needed to ensure the continued security of HIV transits, the 
port, facilities, and the maritime community. The temporary rule issued 
on October 6, 2001, for security of HIVs (66 FR 64144), will be in 
effect only until September 15, 2002 (67 FR 35035).
    Implementation of this regulation on September 15, 2002, is 
necessary to prevent any lapse in the established security procedures 
and to facilitate ongoing response efforts and prevent future terrorist 
attack. Any delay in the effective date would leave critical HIV cargo 
vessels, their crews, the port, facilities, and the maritime community 
with inadequate security measures to meet potential threats. Since the 
October 2001 effective date of the temporary rule, approximately seven 
high interest vessel transits have occurred under the temporary 
regulation. Disruptions to waterways users have been minimal and no 
complaints have been received.

[[Page 56223]]

Background and Purpose

    In light of terrorist attacks on New York City and Washington, DC 
on September 11, 2001, and the continuing concern for future terrorist 
acts against the United States, we have established permanent safety 
and security zones to safeguard high interest vessels transiting 
Narragansett Bay en route commercial facilities in the upper Providence 
River and Taunton River. For purposes of this rulemaking, high interest 
vessels operating in the Providence Captain of the Port zone include 
barges or ships carrying liquefied petroleum gas (LPG), liquefied 
natural gas, chlorine, anhydrous ammonia, or any other cargo deemed to 
be high interest by the Captain of the Port.
    Title 33 CFR 165.121 currently provides for safety zones for LPG 
vessels while at anchor in Rhode Island Sound, while transiting 
Narragansett Bay and the Providence River, and while LPG vessels are 
either moored at the Port of Providence LPG facility or at the 
manifolds connected at the Port of Providence LPG facility. However, in 
light of the current terrorist threats to national security, this zone 
is insufficient to protect LPG vessels while anchored in Rhode Island 
Sound, or while a vessel is transiting or moored in the Port of 
Providence. Moreover, this rulemaking is necessary to protect other 
high interest vessels not currently covered by 33 CFR 165.121.
    This rulemaking makes permanent the temporary safety and security 
zones established on October 6, 2001 (66 FR 64144). That rule created 
temporary safety and security zones around high interest vessels in the 
Providence, Rhode Island Captain of the Port Zone, identical to those 
being made permanent in this rulemaking. That original temporary rule 
was effective until June 15, 2002. The temporary rulemaking was 
extended until September 15, 2002, by a notice in the Federal Register 
dated May 17, 2002 (67 FR 35035). A notice of proposed rulemaking was 
published on June 20, 2002 (67 FR 41911). The comment period for that 
notice ended August 5, 2002.
    The safety and security zones are needed to protect high interest 
vessels, their crews, and the public, from harmful or subversive acts, 
accidents or other causes of a similar nature. The safety and security 
zones have identical boundaries, as follows: (1) All waters of Rhode 
Island Sound within a \1/2\ mile radius of any high interest vessel 
while the vessel is anchored within \1/2\ mile of the position Latitude 
41 deg.25' N, Longitude 71 deg.23' W in the Narragansett Bay 
Precautionary Area; (2) all waters of Rhode Island Sound, Narragansett 
Bay, the Providence and Taunton Rivers 2 miles ahead and 1 mile astern 
and extending 1000 yards on either side of any high interest vessel 
transiting Narragansett Bay, or the Providence and Taunton Rivers; (3) 
all waters and land within a 1000-yard radius of any high interest 
vessel moored at a waterfront facility in the Providence Captain of the 
Port zone.
    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. Each person or vessel in a safety and security zone shall 
obey any direction or order of the Captain of the Port or designated 
Coast Guard representative on-scene. The Captain of the Port 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. The public will be made aware of dates and times 
during which the safety and security zones will be enforced through a 
Marine Safety Information Radio Broadcast on channel 22 (157.1 MHz). 
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 addition to liability against 
the offending vessel, and license sanctions. This regulation is 
proposed under the authority contained in 50 U.S.C. 191, 33 U.S.C. 
1223, 1225 and 1226.

Discussion of Comments and Changes

    For clarification purposes only, we have amended the regulation by 
adding a definition of high interest vessels to the regulatory text. 
This does not change the regulation, as this definition was included in 
the Background and Purpose section of the NPRM for this rulemaking. A 
definition has been added to clarify the application of this 
regulation.

Regulatory Evaluation

    This 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. The sizes of 
the zones are the minimum necessary to provide adequate protection for 
high interest vessels and their crews, other vessels operating in the 
vicinity of high interest vessels and their crews, adjoining areas, and 
the public.
    The entities most likely to be affected are commercial vessels 
transiting the main ship channel en route the upper Providence River 
and Taunton River and pleasure craft engaged in recreational activities 
and sightseeing. The safety and security zones prohibit any commercial 
vessels from meeting or overtaking a high interest vessel in the main 
ship channel, effectively prohibiting use of the channel. However, the 
zones are only effective during the vessel transits, which will last 
for approximately 3 hours. In addition, vessels are able to safely 
transit around the zones while a vessel is moored or at anchor in Rhode 
Island Sound. Additionally, the Captain of the Port may allow persons 
to enter the zone on a case-by-case basis.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses and 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. This rule will affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit the main ship channel in Narragansett Bay, Providence River, 
and the Taunton River at the same time as high interest vessels, and 
vessels transiting in the vicinity of moored high interest vessels. The 
safety and security zones will not have a significant economic impact 
on a substantial number of small entities for several reasons: Small 
vessel traffic can pass safely around the zones and

[[Page 56224]]

vessels engaged in recreational activities, sightseeing and commercial 
fishing have ample space outside of the safety and security zones to 
engage in these activities. When a high interest vessel is at anchor, 
vessel traffic will have ample room to maneuver around the safety and 
security zones. The outbound and inbound transit of a high interest 
vessel will each last a maximum of three hours. Although this 
regulation prohibits simultaneous use of the channel, this prohibition 
is of short duration and marine advisories will be issued prior to 
transit of a high interest vessel. While a high interest vessel is 
moored, commercial traffic and small recreational traffic will have an 
opportunity to coordinate movement through the safety and security 
zones with the patrol commander. Before the effective period, we will 
issue maritime advisories widely available to users of the area.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. If your 
small business or organization would be affected by this rule and you 
have questions concerning its provisions or options for compliance, 
please call LT David C. Barata, telephone (401) 435-2335. 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 Agriculture 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 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 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 this rule 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 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 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.

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.

Energy Effects

    We 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.

Environment

    We have considered the environmental impact of implementing 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping Requirements, Security measures, Waterways.

    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 and 160.5; 49 CFR 1.46.

    2. Revise Sec. 165.121 to read as follows:


Sec. 165.121  Safety and Security Zones: High Interest Vessels, 
Narragansett Bay, Rhode Island.

    (a) Location. (1) All waters of Rhode Island Sound within a \1/2\ 
mile radius of any high interest vessel while the vessel is anchored 
within \1/2\ mile of the point Latitude 41 deg.25' N, Longitude 
71 deg.23' W in the Narragansett Bay Precautionary Area.
    (2) All waters of Rhode Island Sound, Narragansett Bay, the 
Providence and Taunton Rivers 2 miles ahead and 1 mile astern, and 
extending 1000 yards on either side of any high interest vessel 
transiting Narragansett Bay, or the Providence and Taunton Rivers.
    (3) All waters and land within a 1000-yard radius of any high 
interest vessel moored at a waterfront facility in the Providence 
Captain of the Port zone.
    (b) High Interest Vessels defined. For purposes of this section, 
high interest vessels operating in the Providence Captain of the Port 
zone include the following: barges or ships carrying liquefied 
petroleum gas (LPG), liquefied natural gas (LNG), chlorine, anhydrous 
ammonia, or any other cargo deemed to be high interest by the Captain 
of the Port, Providence.

[[Page 56225]]

    (c) Regulations. (1) Entry into or movement within these zones, 
including below the surface of the water, during times in which high 
interest vessels are present and the zones are enforced is prohibited 
unless authorized by the COTP Providence or authorized representative.
    (2) The general regulations covering safety and security zones in 
Secs. 165.23 and 165.33, respectively, of this part apply.
    (3) All persons and vessels shall comply with the instructions of 
the COTP, and the designated on-scene U.S. Coast Guard personnel. On-
scene Coast Guard patrol personnel include commissioned, warrant, and 
petty officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, local, state, and federal law enforcement vessels.

    Dated: August 19, 2002.
Mary E. Landry,
Captain, Coast Guard, Captain of the Port, Providence, Rhode Island.
[FR Doc. 02-22339 Filed 8-30-02; 8:45 am]
BILLING CODE 4910-15-P