[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22305-22308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10425]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-028]
RIN 1625-AA00


Security Zones; Escorted Vessel Transits, Portland, ME, Captain 
of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary security zones for 
vessels designated by the Captain of the Port (COTP) Portland, Maine, 
to be in need of a Coast Guard escort for security reasons while they 
are transiting the COTP Portland, Maine Zone. These security zones are 
needed to safeguard the public, designated vessels and their crews, 
other vessels and their crews, and the ports and infrastructure within 
the Portland, Maine, COTP zone from sabotage or other subversive acts, 
accidents, or other causes of a similar nature. 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 from 12 a.m. (noon) EDT on April 15, 2003 
until 12 a.m. (noon) EDT on October 11, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-03-028 and are available for 
inspection or copying at U.S. Coast Guard Marine Safety Office 
Portland, 27 Pearl Street, Portland, Maine, 04101 between 8 a.m. and 4 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Ronald F. Pigeon at Marine Safety 
Office Portland, (207) 780-3251.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Due to the heightened Homeland 
Security Advisory System threat level and the current conflict in Iraq 
we feel it is necessary and prudent to enact this regulation 
immediately to safeguard the public, the port, facilities, and the 
maritime community and to ensure the security of escorted vessel 
transits in the Portland, Maine, COTP zone. Any delay would leave 
escorted vessels, their crews, the port, facilities, and the maritime 
community with inadequate security measures to meet potential threats.
    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. Due to the heightened Homeland 
Security Advisory System threat level and the current conflict in Iraq, 
the Coast Guard has expanded its use of vessel boardings and escorts to 
better safeguard the public, the port facilities, and the maritime 
community from possible terrorist activity. This regulation is needed 
immediately to assist the Coast Guard in providing adequate protection 
around these escorted vessels while transiting in the Portland, Maine, 
COTP zone.

Background and Purpose

    In light of terrorist attacks on New York City and Washington, DC 
on September 11, 2001, the ongoing conflict in Iraq and the continuing 
concern for future terrorist acts against the United States, we have 
established security zones to safeguard escorted vessels transiting in 
the Portland, Maine, COTP zone. For purposes of this

[[Page 22306]]

rulemaking, escorted vessels include any vessels designated by the 
Coast Guard Captain of the Port, Portland, Maine to be in need of Coast 
Guard escorts in the Portland, Maine, COTP zone, other than Liquefied 
Petroleum Gas (LPG) vessels, which are covered under 33 CFR 165.103, or 
high capacity passenger vessels, which are covered under 33 CFR 
165.105. A designated representative aboard a Coast Guard cutter or 
patrol boat will accompany vessels deemed in need of escort protection.
    These security zones are needed to protect escorted vessels, their 
crews, and the public, from harmful or subversive acts, accidents or 
other causes of a similar nature. The security zones have boundaries as 
follows: All navigable waters, within the Portland Maine, Captain of 
the Port zone, extending from the surface to the sea floor, extending 
200-yards ahead, and 100-yards aside and astern of any designated 
vessel that is underway.
    No person or vessel may enter or remain in the prescribed security 
zones at any time without the permission of the Captain of the Port. 
Each person or vessel in a security zone shall obey any direction or 
order of the Captain of the Port or the designated Coast Guard on-scene 
representative. 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. Any 
violation of any 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 rem liability against the offending 
vessel, and license sanctions. This regulation is established under the 
authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.
    As part of the Diplomatic Security and Antiterrorism Act of 1986 
(Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways 
Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take 
actions, including the establishment of security zones, to prevent or 
respond to acts of terrorism against individuals, vessels, or public or 
commercial structures. Moreover, the Coast Guard has authority to 
establish security zones pursuant to the Act of June 15, 1917, as 
amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) 
(the ``Magnuson Act''), and implementing regulations promulgated by the 
President in subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code 
of Federal Regulations.

Discussion of Rule

    This proposed rule establishes temporary security zones for vessels 
designated to be in need of Coast Guard escorts by the Captain of the 
Port, Portland, Maine, while those vessels are transiting within the 
Portland, Maine, Captain of the Port zone. The security zones will 
encompass all navigable waters, within the Portland, Maine, Captain of 
the Port zone, extending from the surface to the sea floor, extending 
200-yards ahead, and 100-yards aside and astern of any escorted vessel 
that is underway.
    Given the threat of sabotage, terrorist or subversive attacks, this 
proposed rule is necessary to immediately assist the Coast Guard in 
providing adequate protection around escorted vessels while transiting 
in the Portland, Maine, COTP zone under Coast Guard escort. 
Specifically, the vessels at issue include: those which are deemed by 
the Captain of the Port, Portland, Maine to be in need of Coast Guard 
escorts, for security reasons. A designated representative aboard a 
Coast Guard cutter or patrol boat will accompany vessels deemed in need 
of this escort protection.
    The Captain of the Port, Portland, Maine will notify the maritime 
community of the periods during which the safety and security zones 
will be enforced. Broadcast notifications will be made to the maritime 
community advising them of the boundaries of the zones and a designated 
representative aboard a Coast Guard cutter or patrol boat will 
accompany vessels deemed in need of escort.

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 Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full regulatory evaluation under the regulatory policies and procedures 
of the DHS is unnecessary. Although this proposed rule will prevent 
some traffic from moving within a portion of the harbor during escorted 
vessel transits, the effect of this regulation will not be significant 
for several reasons: the impact on the navigational channel will be for 
a minimal amount of time, there is ample room to navigate around the 
zones, and delays, if any, will be minimal, as vessels will only have 
to wait a short time for the escorted vessel to pass if they cannot 
safely pass outside the zones. Moreover, broadcast notifications will 
be made via VHF radio to the maritime community advising them of the 
boundaries of the zones and Coast Guard and other law enforcement 
assets will be on-scene to direct vessels away from the zones. Vessels 
will be able to arrange passage through the zones, if needed, with the 
permission of the Captain of the Port or the designated on-scene patrol 
representative.

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, 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 or anchor in these zones during escorted vessel transits. 
However, this rule will not have a significant economic impact on a 
substantial number of small entities due to the minimal time that 
vessels will be restricted from the area of the zones; vessels can pass 
safely around the zones; vessels will only have to wait a short time 
for the escorted vessel to pass if they cannot safely pass outside the 
zones; and advance notifications will be made to the local maritime 
community by marine information broadcasts.

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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If this rule 
would affect your small business, organization or governmental

[[Page 22307]]

jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact LT Ronald F. Pigeon at Marine 
Safety Office Portland, (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 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 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.

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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g) of the Instruction, from further 
environmental documentation since implementation of this action will 
not result in any: (1) Significant cumulative impacts on the human 
environment; (2) Substantial controversy or substantial change to 
existing environmental conditions; (3) Impacts on properties protected 
under the National Historic Preservation Act or (4) Inconsistencies 
with any Federal, State or local laws or administrative determinations 
relating to the environment. A final ``Environmental Analysis 
Checklist'' and a final ``Categorical Exclusion Determination'' will be 
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.


0
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

0
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; Department of Homeland Security Delegation 
No. 0170.


0
2. Add Sec.  165.T01-028 to read as follows:


Sec.  165.T01-028  Security Zones; Escorted Vessel Transits, Portland, 
Maine, Captain of the Port Zone.

    (a) Definition. ``Escorted vessel'' as used in this section 
describes escorted vessels operating in the Portland, Maine, Captain of 
the Port zone including the following: any vessels designated to be in 
need of Coast Guard escorts by the Captain of the Port, Portland, 
Maine, for security reasons, other than Liquefied Petroleum Gas (LPG) 
vessels, which are covered under 33 CFR 165.103, or high capacity 
passenger vessels, which are covered under 33 CFR 165.105. A designated 
representative aboard a Coast Guard cutter or patrol boat will 
accompany vessels deemed in need of escort protection.
    (b) Location. The following areas are security zones: All navigable 
waters, within the Portland Maine, COTP zone, extending from the 
surface to the sea floor, extending 200 yards ahead, and 100 yards 
aside and astern of any escorted vessel that is underway.
    (c) Effective period. This rule is effective from 12 a.m. (noon) 
EDT on April 15, 2003 until 12 a.m. (noon) EDT on October 11, 2003.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into or movement within these zones is 
prohibited unless previously authorized by the Coast Guard Captain of 
the Port (COTP), Portland, Maine or his designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the COTP at telephone number 207-780-3251 or the authorized on-
scene patrol representative on VHF-FM channel 13

[[Page 22308]]

(156.65 MHz) or VHF-FM channel 16 (156.8MHz) to seek permission to 
transit the area.
    (3) All persons and vessels must comply with the instructions of 
the COTP or the designated on-scene 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.
    (4) The COTP or his designated representative will notify the 
maritime community of periods during which these zones will be 
enforced. The COTP or his designated representative will identify 
escorted vessel transits by way of marine information broadcast. 
Emergency response vessels are authorized to move within the zone, but 
must abide by restrictions imposed by the COTP or his designated 
representative.
    (e) Enforcement. The COTP will enforce these zones and may enlist 
the aid and cooperation of any Federal, state, county, municipal, or 
private agency to assist in the enforcement of the regulation.

    Dated: April 14, 2003.
Mark P. O'Malley,
Commander, U.S. Coast Guard, Captain of the Port, Portland, Maine.
[FR Doc. 03-10425 Filed 4-25-03; 8:45 am]
BILLING CODE 4910-15-P