[Federal Register: April 28, 2003 (Volume 68, Number 81)]
[Rules and Regulations]
[Page 22305-22308]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap03-8]
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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]
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