02-160. Regulated Navigation Areas, Safety And Security Zones: Long Island Sound Marine Inspection and Captain of the Port Zone

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary regulated navigation area (RNA) and two safety and security zones. The rule will regulate the circumstances under which certain vessels may enter, transit or operate within the regulated navigation area and will exclude all vessels from operating within 700 yards of the Millstone Nuclear Power Plant or 100 yards of an anchored Coast Guard vessel. This action is necessary to ensure public safety and prevent sabotage or terrorist acts.

DATES:

This rule is effective from December 10, 2001 until June 15, 2002.

ADDRESSES:

Documents as indicated in this preamble are available for inspection or copying at Group/Marine Safety Office Long Island Sound, 120 Woodward Avenue, New Haven, CT between the hours of 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander P.J. Maguire, Group/Marine Safety Office Long Island Sound, Prevention Department, at [phone].

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. On September 11, 2001, two commercial aircraft were hijacked from Logan Airport in Boston, Massachusetts and flown into the World Trade Center in New York, New York 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 against civilian targets may be anticipated. This rulemaking is urgently required to prevent future terrorist strikes within and adjacent to waters within the Long Island Sound Marine Inspection and Captain of the Port Zone. The delay inherent in the NPRM process is contrary to the public interest insofar as it may render individuals, vessels and facilities within and adjacent to the Long Island Sound Marine Inspection and Captain of the Port Zone vulnerable to subversive activity, sabotage or terrorist attack.

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. The measures contemplated by the rule are intended to prevent future terrorist attack against individuals, vessels and waterfront facilities within or adjacent to the Long Island Sound Marine Inspection and Captain of the Port Zone. Immediate action is required to accomplish these objectives. Any delay in the effective date of this rule is impracticable and contrary to the public interest.

Background and Purpose

On September 11, 2001, terrorists launched attacks on civilian and military targets within the United States killing large numbers of people and damaging properties of national significance. Vessels operating within the Long Island Sound Marine Inspection and Captain of the Port Zone present possible targets of terrorist attack or platforms from which terrorist attacks may be launched upon other vessels, waterfront facilities and adjacent population centers. The Coast Guard has established a Regulated Navigation Area within the waters of Long Island Sound Marine Inspection and Captain of the Port Zone, as part of a comprehensive, port security regime designed to safeguard human life, vessels and waterfront facilities from sabotage or terrorist acts. The Captain of the Port will determine the threat posed by and to affected vessels within the Regulated Navigation Area and may establish conditions, under which they are allowed to enter, transit or operate within the area. Prior to the determination of whether and under what conditions a vessel may enter, transit or operate within the Regulated Navigation Area, vessels may be directed by the Captain of the Port to temporarily anchor in a specific location within the Regulated Navigation Area. In addition, the Coast Guard has established a safety and security zone that restricts movement within 700 yards of the Millstone Nuclear Power Plant in Waterford, CT. Safety and security zones are established for all waters within 100 yards of all anchored Coast Guard vessels.

Regulated Navigation Area

The rule establishes a regulated navigation area (RNA) comprised of the waters of the Long Island Sound Marine Inspection and Captain of the Port Zone extending seaward 12 nautical miles from the territorial sea baseline. Affected vessels are required to obtain authorization from the Captain of the Port before crossing the three nautical mile line from any southern or eastern approach. The three nautical mile line is measured from the territorial sea baseline. This line 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 Captain of the Port. Vessels awaiting a port security inspection or Captain of the Port authorization to enter will be directed to anchor in a specific location.

All vessels over 1,600 gross tons operating inside the line extending seaward three nautical miles from the territorial sea baseline must receive authorization from the Captain of the Port prior to any vessel movement. This requirement enables the Captain of the Port to maintain control over the movement of vessels that pose a potential threat to other vessels, waterfront facilities and adjacent population centers. The Captain of the Port may authorize a vessel subject to this rule to enter a port or place within the RNA under such circumstances and conditions as he deems 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 through the Lower Thames River and the Naval Submarine Base New London Restricted Area, established in 33 CFR 334.75(a), at a speed in excess of 8 knots. This speed restriction does not apply to public vessels as defined in 33 USC 1321(a)(4).

Safety and Security Zones

The rule also establishes safety and security zones. One zone is being established within a 700-yard radius from the stack at the Millstone Power Plant. This zone is being established to protect the power plant, persons and vessels from subversive or terrorist acts. We have created additional zone defined by reference to a fixed radius around Coast Guard vessels anchored in the RNA. These zones are intended principally to protect the vessels themselves from subversive or terrorist acts.

No person or vessel may enter or remain in the prescribed safety and security zone at any time without the permission of the Captain of the Port. Each person or vessel in a safety and security zone shall obey any direction or order of the Captain of the Port. The Captain of the Port may take possession and control of any vessel in a safety and security zone and/or remove any person, vessel, article or thing from a security zone.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This finding is based on the relatively small area which vessels are prohibited from operating within. 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. Any hardships experienced by persons or vessels are considered minimal compared to the 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 et seq.), the Coast Guard has not yet determined whether this proposal will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses and 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 is not presently able to certify under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) that this final rule will not have a significant economic impact on a substantial number of small entities. However, given the continued risk and potential damage to the national security interests of the United States, in addition to the need to protect and safeguard innocent civilians within and near the port, it is necessary to implement this regulation before said analysis may be fully accomplished. Maritime advisories will be initiated by normal methods and means and will be widely available to users of the area.

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 final rule so that they can better evaluate its effects on them and participate in the rulemaking. If your small business or organization would be affected by this final rule and you have questions concerning its provisions or options for compliance, please call Lieutenant Commander P.J. Maguire, Marine Safety Office Long Island Sound, at [phone]. 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 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 $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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures
• Waterways

For the reasons 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, 160.5; 49 CFR 1.46.

2. Add temporary § 165.T01-153 to read as follows:

§ 165.T01-153

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 Zone, as delineated in 33 CFR 3.05-35, extending seaward to a line 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, except the following:

(1) Recreational vessels;

(2) Vessels operating exclusively within the Marine Inspection and Captain of the Port Zone;

(3) Vessels on a single voyage which depart from and return to the same port or place within the RNA;

(4) U.S. flagged public vessels; and

(5) Primary towing vessels engaged in towing tank barges carrying petroleum oil in bulk as cargo and issuing the securite calls required under 33 CFR 165.100(d)(2).

(c) Effective dates. This section is effective from December 10, 2001 until June 15, 2002.

(d) Regulations. (1) Speed restrictions in vicinity of Naval Submarine Base New London and Lower Thames River. Vessels of 300 gross tons or more may not proceed at a speed over 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 specified in 33 CFR 334.75(a). All vessels less than 300 gross tons are exempt from this rule. This speed restriction does not apply to public vessels as defined in 33 U.S.C. 1321(a)(4). 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) All inbound vessels operating within the RNA must be inspected to the satisfaction of the United States Coast Guard and must obtain authorization from the Captain of the Port before crossing the line three nautical miles from the territorial sea baseline.

(3) Vessels awaiting inspection or Captain of the Port authorization to enter within the three nautical mile line will be directed to anchor in a specific location within the Regulated Navigation Area.

(4) Vessels over 1,600 gross tons operating in the RNA within the line extending seaward three nautical miles from the territorial sea baseline must receive authorization from the Captain of the Port prior to any vessel movements.

3. Add temporary § 165.T01-154 to read as follows:

§ 165.T01-154

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

(a) Safety and security zones. The following are established as safety and security zones:

(1) Safety and Security Zone A: The waters of Long Island Sound south, east and west of the Millstone Power Plant within a seven hundred (700) yard radius of the stack at Millstone, Lat. 41°18′34″ North, Long. 72°9′57″ West (NAD 83).

(2) Safety and Security Zone B. U. S. Coast Guard vessels: All waters within a 100-yard radius of any anchored U. S. Coast Guard vessel.

(b) Effective date. This section is effective from December 10, 2001 until June 15, 2002.

(c) Regulations. (1) The general regulations contained in 33 CFR 165.23 and 165.33 apply.

(2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated 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: December 10, 2001.

G. N. Naccara,

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