[Federal Register Volume 67, Number 171 (Wednesday, September 4, 2002)]
[Rules and Regulations]
[Pages 56485-56488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22493]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing safety and security zones 1 
mile ahead, \1/2\ mile astern, and 1000-yards on either side of any 
vessel capable of carrying Liquefied Petroleum Gas (LPG) while within, 
or transiting, the Portland, Maine, Captain of the Port zone. This rule 
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 into 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: This rule is effective October 4, 2002.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD01-02-045 and are available for inspection or 
copying at Marine Safety Office Portland, 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, 
Port Operations Department, Captain of the Port, Portland, Maine at 
(207) 780-3251.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On May 23, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety and Security Zones; Portsmouth Harbor, 
Portsmouth, New Hampshire'' in the Federal Register (67 FR 36122). We 
received no letters commenting on the proposed rule. No public hearing 
was requested, and none was held.
    This final rule will make permanent a temporary final rule (TFR) 
entitled ``Safety and Security Zones; LPG Transits, Portland, Maine 
Marine Inspection Zone and Captain of the Port Zone'' published on 
November 20, 2001 in the Federal Register (66 FR 58064). That TFR had 
an effective period from November 9, 2001 through June 21, 2002. On May 
8, 2002, we published an extension to that TFR entitled ``Safety and 
Security Zones; Portsmouth Harbor, Portsmouth, New Hampshire'' in the 
Federal Register (67 FR 30809). This extension extended the effective 
period until August 15, 2002.

Background and Purpose

    The September 11, 2001 terrorist attacks on New York and 
Washington, DC 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 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.
    This final rule will revise a current safety zone for transits of 
tank vessels

[[Page 56486]]

carrying Liquefied Petroleum Gas in Portsmouth Harbor, Portsmouth, New 
Hampshire. The current rule will be replaced in whole by this final 
rule. Title 33 CFR 165.103, entitled ``Safety Zone: Portsmouth Harbor, 
Portsmouth, New Hampshire'', 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). Currently, 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.
    In comparison to 33 CFR 165.103, this final rule will provide 
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. It also provides 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 Portland, Maine, Captain of the Port zone, as defined 
in 33 CFR 3.05-15, rather than limiting the protection to vessels 
carrying LPG that 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 final rule 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 final rule establishes safety and security zones around any LPG 
vessel, loaded or unloaded, any time a LPG vessel is located in the 
Portland, Maine, Captain of the Port zone, including the internal 
waters and out to 12 nautical miles from the baseline of the United 
States. To the extent that it is applicable, under the Ports and 
Waterways Safety Act (33 U.S.C.S 1221 et seq., and 46 U.S.C.S. 301a) 
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. These zones provide 
necessary protection to unloaded vessels, which continue to pose a 
safety/security hazard due to ignition of the vapor material. This 
final rule 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 these 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. 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. To the extent that each is 
applicable, 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 $250,000), in rem liability against the 
offending vessel, and license sanctions.

Discussion of Comments and Changes

    The Coast Guard received no comments for this rulemaking. Three 
changes have been made to the proposed rule in this final rulemaking: 
(1) by revising paragraph (a) to include the reference to the 
definition of the Portland, Maine, Captain of the Port Zone (2) by 
adding paragraph (b) defining navigable waters for this section and (3) 
by adding paragraph (d) regarding notifications.

Regulatory Evaluation

    This proposed 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: These 
zones should have minimal impact on the users of the Portland, Maine, 
Captain of the Port 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 LPG 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 telephone and/or marine information 
broadcasts.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612) we have 
considered whether this proposal 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 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.

Assistance for Small Entities

    Under section 213 (a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with Federal 
regulations to

[[Page 56487]]

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 contains 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 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 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 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 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

    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 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.

Environment

    We have 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.

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 33 CFR 165.103 to read as follows:


Sec. 165.103  Safety and Security Zones; LPG Vessel Transits in 
Portland, Maine, Captain of the Port Zone, Portsmouth Harbor, 
Portsmouth, New Hampshire.

    (a) Location. The following areas are safety and security zones: 
(1) Except as provided in paragraph (a) (2) of this section, all 
navigable waters of the Portland, Maine, Captain of the Port zone, as 
defined in 33 CFR 3.05-15, one mile ahead, one half mile astern, and 
1000-yards on either side of any Liquefied Petroleum Gas vessel.
    (2) 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.
    (b) Definitions. For purposes of this section, navigable waters of 
the United States includes all waters of the territorial sea as 
described in Presidential Proclamation No. 5928 of December 27, 1988. 
Presidential Proclamation No. 5928 of December 27, 1988 declared that 
the territorial sea of the United States extends to 12 nautical miles 
from the baseline of the United States.
    (c) Regulations. (1) In accordance with the general regulations in 
Secs. 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.
    (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.
    (d) The Captain of the Port will notify the maritime community and 
local agencies of periods during which these safety and security zones 
will be in effect by providing notice of arrivals and departures of LPG 
vessels via the telephone and/or Marine Safety Information Radio 
Broadcasts.


[[Page 56488]]


    Dated: August 26, 2002.
M.P. O'Malley,
Commander, U.S. Coast Guard, Captain of the Port, Portland, Maine.
[FR Doc. 02-22493 Filed 9-3-02; 8:45 am]
BILLING CODE 4910-15-P