[Federal Register Volume 68, Number 54 (Thursday, March 20, 2003)]
[Proposed Rules]
[Pages 13643-13647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6642]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-02-104]
RIN 1625-AA00, AA11


Regulated Navigation Areas, Safety and Security Zones; Long 
Island Sound Marine Inspection and Captain of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a regulated navigation 
area (RNA) and two safety and security zones. The rule would regulate 
the circumstances under which certain vessels may enter, transit or 
operate within the RNA and would exclude all vessels from operating 
within the prescribed safety and security zones without first obtaining 
authorization from the Captain of the Port. This action is necessary to 
ensure public safety and prevent sabotage or other subversive acts.

DATES: Comments and related material must reach the Coast Guard on or 
before May 19, 2003.

ADDRESSES: You may mail comments and related material to Waterways 
Management, Coast Guard Group/Marine Safety Office Long Island Sound, 
120 Woodward Avenue, New Haven, CT 06512. Coast Guard Group/MSO Long 
Island Sound 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 Group/
MSO Long Island Sound, New Haven, CT, between 9 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant A. Logman, Waterways 
Management Officer, Coast Guard Group/Marine Safety Office Long Island 
Sound at (203) 468-4429.

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-
104), 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 
your submission 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 Coast Guard Group/Marine Safety 
Office Long Island Sound 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

[[Page 13644]]

and flown into the World Trade Center in New York, NY inflicting 
catastrophic human casualties and property damage. A similar attack was 
conducted on the Pentagon with a plane launched from Newark, NJ on the 
same day. National security and intelligence officials warn that future 
terrorist attacks are likely.
    Vessels operating within the Long Island Sound Marine Inspection 
and Captain of the Port (COTP) Zone present potential targets of 
terrorist attack or platforms from which terrorist attacks may be 
launched upon other vessels, waterfront facilities and adjacent 
population centers. Following the September 11 attacks, we published a 
temporary rule (67 FR 517-520, January 4, 2002) that established a 
temporary RNA and safety and security zones in the Long Island Sound 
Marine Inspection and COTP Zone. We twice revised the temporary rule 
(67 FR 40859-40861, June 14, 2002 and 67 FR 69134, November 15, 2002) 
to extend its effective period to March 15, 2003. These temporary 
measures were taken to safeguard human life, vessels and waterfront 
facilities from sabotage or terrorist acts while we assessed the 
security environment within the area and determined the need for and 
advisability of permanent security measures.
    The Coast Guard now proposes to establish a permanent RNA and 
safety and security zones within Long Island Sound as part of a 
comprehensive, port security regime designed to safeguard human life, 
vessels and waterfront facilities from sabotage or terrorist acts. The 
proposed permanent RNA incorporates the provisions of the temporary RNA 
that have been in place since January 4, 2002, and expands the 
operating requirements for vessels within the RNA. The Coast Guard also 
proposes to establish two permanent safety and security zones. The 
zones have been tailored to fit the needs of security, while minimizing 
the impact on the maritime community.

Discussion of Proposed Rule

Regulated Navigation Area

    The rule would establish an RNA comprised of the waters of the Long 
Island Sound Marine Inspection and COTP zone, as defined in 33 CFR 
3.05-35, extending seaward 12 nautical miles from the territorial sea 
baseline. Under the regulations established in this RNA, certain 
vessels would be required to obtain authorization from the COTP before 
crossing within three nautical miles of the territorial sea baseline 
from any southern or eastern approach, except in innocent passage. This 
three-mile limit is depicted on National Oceanic and Atmospheric 
Administration (NOAA) nautical charts, including chart numbers 13205, 
12353, and 12326. In order to obtain authorization, a vessel subject to 
this rule may be required to undergo a port security inspection to the 
satisfaction of the COTP. Vessels awaiting a port security inspection 
or COTP authorization to enter waters within three nautical miles from 
the territorial sea baseline would be required to anchor in the manner 
directed by the COTP.
    All vessels over 1,600 gross tons operating inside the line 
extending seaward three nautical miles from the territorial sea 
baseline would be required to receive authorization from the COTP prior 
to transiting or any intentional vessel movements, including, but not 
limited to, shifting berths, departing anchorage, or getting underway 
from a mooring. This requirement enables the COTP to maintain control 
over the movement of vessels that pose a potential threat to other 
vessels, waterfront facilities and adjacent population centers. The 
COTP could authorize a vessel subject to this rule to enter a port or 
place within the RNA under such circumstances and conditions as deemed 
appropriate to minimize the threat of injury to the vessel, the port, 
waterfront facilities or adjacent population centers resulting from 
sabotage or terrorist acts launched against or from the vessel.
    Vessels 300 gross tons or greater may not transit at a speed in 
excess of 8 knots through the Lower Thames River from New London Harbor 
channel buoys 7 and 8 (Light List numbers 21875 and 21880 respectively) 
north through the upper limit of the Naval Submarine Base New London 
Restricted Area, established in 33 CFR 334.75(a). This speed 
restriction does not apply to ``public vessels'', which are defined as 
vessels owned or bareboat-chartered and operated by the United States, 
or by a State or political subdivision thereof, or by a foreign nation, 
except when such vessel is engaged in commerce. Prior to entering 
waters within a 1200 yard perimeter surrounding any ferry vessel, 
commercial vessels 300 gross tons or more will be required to obtain 
the permission of the ferry vessel licensed operator, licensed master, 
or designated COTP on scene patrol. Ferry means a vessel that: (a) 
Operates in other than ocean or coastwise service; (b) has provisions 
only for deck passengers or vehicles, or both; (c) operates on a short 
run on a frequent schedule between two points over the most direct 
water route; and (d) offers a public service of a type normally 
attributed to a bridge or tunnel.
    No vessel, irrespective of size, may enter within a 100-yard radius 
of any commercial vessel transiting, moored, or berthed in any portion 
of the Marine Inspection and COTP zone, Long Island Sound, without the 
express prior authorization of the vessel operator, master, or a 
designated COTP on-scene representative. For purposes of this 
regulation, a commercial vessel is any vessel in commercial service. A 
vessel in commercial service means any type of trade or business 
involving the transportation of goods or individuals, except service 
performed by a combatant vessel. However, this rule does not abrogate a 
vessel's duty to comply with applicable navigation rules at all times. 
In addition, when passing under a bridge, all vessels, irrespective of 
size, must stay in the navigable channel, and must not approach within 
a 25-yard radius of any bridge foundation, support, stanchion, pier or 
abutment, except for the purpose of immediate passage under the bridge. 
Vessels may not stop or anchor under any bridge, and may transit 
beneath a bridge only for the purpose of direct, immediate and 
expeditious passage under the bridge.

Safety and Security Zones

    This proposed rule would establish two permanent safety and 
security zones. The proposed Millstone Nuclear Power Plant safety and 
security zones include (a) all waters north and north east of a line 
running from Bay Point, at approximate position 41-18.57 N, 072-10.41 
W, to Millstone Point at approximate position 41-18.25 N, 072-09.96 W 
and (b) all waters west of a line starting at 41-18.700 N, 072-09.650 
W, running south to the eastern most point of Fox Island at approximate 
position 41-18.400 N, 072-09.660 W. All coordinates are North American 
Datum (NAD) 1983. The second proposed safety and security zones would 
include all waters within a 100-yard radius of any anchored Coast Guard 
vessel. For purposes of this section, Coast Guard vessels include any 
commissioned vessel or small boat in the service of the regular Coast 
Guard, and do not include Coast Guard Auxiliary vessels. Each of the 
proposed zones is necessary to protect the facility, structure or 
vessel around which it is drawn from subversive or terrorist acts.
    No person or vessel may enter or remain in a prescribed safety or 
security zone at any time without the permission of the COTP. Each 
person or vessel in a safety or security zone shall obey any direction 
or order of the COTP. The

[[Page 13645]]

COTP 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 COTP.
    Any violation of any safety or security zone proposed 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. This regulation is proposed 
under the authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225, 
and 1226, and the regulations promulgated thereunder.

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 
Homeland Security (DHS).
    The Coast Guard expects the economic impact of this final rule to 
be so minimal that a full Regulatory Evaluation under the regulatory 
policies and procedures of DHS is unnecessary. This proposed regulation 
may have some impact on the public, but these potential impacts will be 
minimized for the following reasons: there is ample room for vessels to 
navigate around each of the safety and security zones; it is 
contemplated that vessels will be able to operate elsewhere within the 
RNA once the Captain of the Port has determined that the vessels do not 
pose a threat to individuals, other vessels or waterfront facilities; 
to the extent that the proposed rule tracks the provisions of temporary 
rules that have been in place since January 4, 2002, our experience 
demonstrates that it not be burdensome on the maritime public; and the 
local maritime community will be informed of the zones via marine 
information broadcasts. While recognizing the potential for some 
minimal impact from the proposed rule, the Coast Guard considers it de 
minimus in comparison to the compelling national interest in protecting 
the public, vessels, and vessel crews from the further devastating 
consequences of the aforementioned acts of terrorism, and from 
potential future sabotage or other subversive acts, accidents, or other 
causes of a similar nature.

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.
    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. This proposed rule may affect the following 
entities, some of which may be small entities: the owners or operators 
of vessels intending to transit or anchor in those portions of Long 
Island Sound and the Thames River covered by the RNA and/or safety and 
security zones.
    This proposed rule would not have a significant impact on a 
substantial number of small entities because the safety and security 
zones are limited in size, leaving ample room for vessels to navigate 
around the zones. The zones will not significantly impact commuter and 
passenger vessel traffic patterns, and mariners will be notified of the 
proposed zones via local notice to mariners and marine broadcasts. 
Also, the Captain of the Port will make broad allowances for 
individuals to enter the zones during periods when the potential 
threats to the area are deemed to be low. The regulations imposed under 
the RNA will impact a minimal number of commercial and recreational 
vessels, as several of the regulations only apply to large commercial 
vessels. The regulated areas around ferry and commercial vessels will 
minimally impact vessels to whom these regulations apply while waiting 
for authorization to enter the regulated area from the licensed 
operator, licensed master, or the designated COTP on-scene patrol. 
Moreover, the ferry vessel regulated navigation area only applies to 
vessels of 300 gross tons or greater; the 100 yard regulated navigation 
area around commercial vessels leaves ample room for vessels to 
navigate outside of this area. To the extent that the proposed rule 
tracks the provisions of temporary rules that have been in place since 
January 4, 2002, our experience demonstrates that it has not been 
burdensome on the maritime 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 subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
wants 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 proposed rule would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please call 
Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety 
Office Long Island Sound, at (203) 468-4429.
    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 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 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

[[Page 13646]]

$100,000,000 or more in any one year. Though this proposed rule would 
not result in such an expenditure, we do discuss the effects of this 
rule elsewhere in this preamble.

Taking of Private Property

    This proposed rule would 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 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
concern 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, because it would 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.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. 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.

Energy Effects

    We have 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.

Environment

    The Coast Guard considered the environmental impact of this 
proposed rule and concluded that, under figure 2-1, paragraph 34(g), of 
Commandant Instruction M16475.1D, this proposed rule is categorically 
excluded from further environmental documentation. A ``Categorical 
Exclusion Determination'' is available in the docket 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 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, and 160.5; 49 CFR 1.46.

    2. Add Sec.  165.153 to read as follows:


Sec.  165.153  Regulated Navigation Area: Long Island Sound Marine 
Inspection and Captain of the Port Zone.

    (a) Regulated Navigation Area location. All waters of the Long 
Island Sound Marine Inspection and Captain of the Port (COTP) Zone, as 
delineated in 33 CFR 3.05-35, extending seaward 12 nautical miles from 
the territorial sea baseline, are established as a regulated navigation 
area (RNA).
    (b) Applicability. This section applies to all vessels operating 
within the RNA excluding public vessels. For purposes of this section, 
``public vessels'' are defined as vessels owned or bareboat-chartered 
and operated by the United States, or by a State or political 
subdivision thereof, or by a foreign nation, except when such vessel is 
engaged in commerce.
    (c) Definitions. The following definitions apply to this section:
    (1) Commercial service means any type of trade or business 
involving the transportation of goods or individuals, except service 
performed by a combatant vessel.
    (2) Ferry means a vessel that:
    (i) Operates in other than ocean or coastwise service;
    (ii) Has provisions only for deck passengers or vehicles, or both;
    (iii) Operates on a short run on a frequent schedule between two 
points over the most direct water route; and
    (iv) Offers a public service of a type normally attributed to a 
bridge or tunnel.
    (3) Public vessels means vessels owned or bareboat-chartered and 
operated by the United States, or by a State or political subdivision 
thereof, or by a foreign nation, except when such vessel is engaged in 
commerce.
    (d) Regulations. (1) Speed restrictions in the vicinity of Naval 
Submarine Base New London and Lower Thames River. Unless authorized by 
the Captain of the Port (COTP), vessels of 300 gross tons or more may 
not proceed at a speed in excess of eight knots in the Thames River 
from New London Harbor channel buoys 7 and 8 (Light List numbers 21875 
and 21880 respectively) north through the upper limit of the Naval 
Submarine Base New London Restricted Area, as that area is specified in 
33 CFR 334.75(a). The U.S. Navy and other Federal, State and municipal 
agencies may assist the U.S. Coast Guard in the enforcement of this 
rule.
    (2) Enhanced Communications. Vessels of 300 gross tons or more must 
issue securite calls on marine band or Very High Frequency (VHF) radio 
channel 16 upon approach to the following locations:
    (i) Inbound approach to Cerberus Shoal; and
    (ii) Outbound approach to Race Rock Light (USCG Light List No. 
19815).
    (3) All inbound vessels, except those in innocent passage, 
operating within the RNA must be inspected to the satisfaction of the 
U.S. Coast Guard and must obtain authorization from the Captain Of the 
Port (COTP) before entering waters within three nautical miles from the 
territorial sea baseline. Vessels awaiting inspection or COTP 
authorization to enter waters within three nautical miles from the 
territorial sea baseline will be will be required to anchor in the 
manner directed by the COTP. This regulation does not apply to vessels 
operating exclusively within the Long Island Sound Marine Inspection 
and COTP Zone, vessels on a single voyage which depart from and return 
to the same port or place within the RNA, primary towing vessels 
engaged in towing tank barges carrying petroleum oil in bulk as cargo, 
and recreational vessels.
    (4) Vessels over 1,600 gross tons operating in the RNA within three

[[Page 13647]]

nautical miles from the territorial sea baseline must receive 
authorization from the COTP prior to transiting or any intentional 
vessel movements, including, but not limited to, shifting berths, 
departing anchorage, or getting underway from a mooring.
    (5) Ferry Vessels. Vessels of 300 gross tons or more are prohibited 
from entering all waters within a 1200 yard radius of any ferry vessel 
transiting in any portion of the Long Island Sound Marine Inspection 
and COTP Zone without first obtaining the express prior authorization 
of the ferry vessel licensed operator, licensed master, or the 
designated COTP on-scene patrol.
    (6) Commercial vessels. No vessel may enter within a 100-yard 
radius of any vessel in commercial service transiting, moored, or 
berthed in any portion of the Long Island Sound Marine Inspection and 
COTP zone, without the express prior authorization of the vessel's 
licensed operator, master, or the designated COTP on-scene 
representative.
    (7) Bridge foundations. Any vessel operating beneath a bridge must 
make a direct, immediate and expeditious passage beneath the bridge 
while remaining within the navigable channel. No vessel may stop, moor, 
anchor or loiter beneath a bridge at any time. No vessel may approach 
within a 25-yard radius of any bridge foundation, support, stanchion, 
pier or abutment except as required for the direct, immediate and 
expeditious transit beneath a bridge.
    (8) This rule does not relieve any vessel from compliance with 
applicable navigation rules.
    3. Add Sec.  165.154 to read as follows:


Sec.  165.154  Safety and Security Zones: Long Island Sound Marine 
Inspection Zone and Captain of the Port Zone.

    (a) Safety and security zones. The following areas are safety and 
security zones:
    (1) Millstone Nuclear Power Plant Safety and Security Zones:
    (i) All waters north and north east of a line running from Bay 
Point, at approximate position 41-18.57 N, 072-10.41 W, to Millstone 
Point at approximate position 41-18.25 N, 072-09.96 W.
    (ii) All waters west of a line starting at 41-18.700 N, 072-09.650 
W, running south to the eastern most point of Fox Island at approximate 
position 41-18.400 N, 072-09.660 W. All coordinates are North American 
Datum 1983.
    (2) Coast Guard Vessels Safety and Security Zones: All waters 
within a 100-yard radius of any anchored Coast Guard vessel. For the 
purposes of this section, Coast Guard vessels includes any commissioned 
vessel or small boat in the service of the regular Coast Guard and does 
not include Coast Guard Auxiliary vessels.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec. Sec.  165.23 and 165.33 of this part, entry into or movement 
within this zone is prohibited unless authorized by the Captain of the 
Port Long, Island Sound.
    (2) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port or on-scene patrol personnel. These 
personnel comprise commissioned, warrant, and petty officers of the 
Coast Guard. Upon being hailed by a U.S. Coast Guard vessel by siren, 
radio, flashing light, or other means, the operator of a vessel shall 
proceed as directed.

    Dated: March 5, 2003.
Vivien S. Crea,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 03-6642 Filed 3-19-03; 8:45 am]
BILLING CODE 4910-15-P