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Proposed Rule

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

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

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.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

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

End Further Info End Preamble Start Supplemental Information

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 81/2 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 Start Printed Page 13644and 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 Start Printed Page 13645COTP 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 Start Printed 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.

Start List of Subjects

List of Subjects in 33 CFR Part 165

End List of Subjects

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Start Part

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows:

Start Authority

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.

End Authority

2. Add § 165.153 to read as follows:

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 Start Printed Page 13647nautical 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 § 165.154 to read as follows:

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 §§ 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.

Start Signature

Dated: March 5, 2003.

Vivien S. Crea,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.

End Signature End Part End Supplemental Information

[FR Doc. 03-6642 Filed 3-19-03; 8:45 am]

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