"For much of the state of Maine, the environment is the economy"
Issued 2006 August 15
NOTE: Bold & red emphasis has been added.
NOTICE ON U.S. COAST GUARD SAFETY/SECURITY ZONES
Interested parties have inquired as to the nature of any U.S. Coast Guard safety/security zones relative to the LNG facility siting proposals in Downeast Maine, and if imposed, the extent of the restrictions and who would have authority to enforce the imposed restrictions. This notice explains this authority and provides an example of an existing U.S. Coast Guard safety/security zone already in place in Northern New England. A complicating factor is how the U.S. and Canada will work together to ensure consistency relative to any proposed rulemaking for such an area, which is yet to be determined.
The U.S. Coast Guard has the responsibility of safeguarding the nations ports, waterways, port facilities, vessels, persons, and property in the vicinity of the port, from accidental destruction, damage, loss, or injury. In order to protect the navigable waters and adjacent shore areas of the U.S., minimize death, personal injury and property loss, and prevent pollution of the marine environment the Captain of the Port (COTP) administers multi-mission Marine Safety and Security (MSS) and Marine Environmental Protection (MEP) Programs by enforcing federal laws and regulations.
The statutory authority to enforce these laws and regulations is derived from a number of sources, but primarily the Ports and Waterways Safety Act (PWSA) of 1972, i.e., 33 USC 1221 et. seq. Using this authority, the COTP may, when safety, security, or other national interests dictate, establish certain access areas to control the movement of any vessel, vehicle, or person in, or on, the navigable waterways and adjacent shorelines. A control mechanism commonly used to safeguard navigation, vessels and facilities, and to protect the marine environment includes the setting and enforcement of safety zones. Regulations applicable to safety zones are codified in 33 Code of Federal Regulations (CFR) Part 165. A safety zone is a water area, shore area, or combination of water and shore areas to which, for safety and/or environmental protection purposes, access is limited to persons, vehicles, or objects specifically authorized by the COTP or U.S. Coast Guard District Commander. No person may enter a safety zone, remain in a safety zone, or allow any vehicle, vessel, or object to remain in a safety zone, unless authorized by the COTP or the District Commander. Additionally, each person in a safety zone, who has notice of a lawful order or direction, must obey that order or direction, under penalty of law. A safety zone may be described by fixed limits, or it may be a specified zone around a vessel in motion. Safety zones may be established as temporary measures, such as in response to an emergency situation, or they may be established for indefinite periods, such as along the waterfront and shore area of a high-risk waterfront terminal or facility.
Security zones are another control mechanism available to the COTP. Security zones are designated areas of land, water, or combination of land and water, established for such time as necessary to prevent damage or injury to any vessel or waterfront facility; to safeguard ports, harbors, or waters of the United States; or to secure the obligations of the U.S. Security zones are established under the authority of 50 USC 191 and 33 CFR 6.04-6. Security zones are primarily used for national security interests rather than strictly for safety considerations. Due to the heightened security posture consequent to 9/11, however, combinations of safety and security zones are often being employed when the need dictates.
The respective authorities for safety and security zones provide that vessel traffic controls may be imposed in areas determined to be hazardous, or under conditions such as restricted visibility, adverse weather, vessel congestion, or other hazardous circumstances by specifying times of vessel(s) movement; establishing a vessel traffic scheme; or restricting vessel size, speed, draft, or operating parameters. The establishment and enforcement of controlled access areas, such as safety and security zones, are not arbitrary measures. They are established through the Federal rulemaking process and must be published in the Federal Register. Rulemaking of a non-emergency nature, as in the case of long term LNG siting proposals, requires also the opportunity for public comment. This process provides "constructive legal notice" to the general public and the maritime community as to the rulemaking’s existence and legal enforceability and provides an opportunity to shape the rule in such a way that makes sense for the local area.
Historically, safety and security zones have been control mechanisms employed by COTP’s to ensure the safe navigation of vessels transiting U.S. waters carrying bulk products such as liquefied petroleum gas, liquefied natural gas, explosives, and dangerous articles. Safety/security zones serve important dual purposes. A level of safety is provided to the transiting vessel by minimizing waterway congestion and a layer of protection is afforded to the surrounding port community through the reduction in casualty risk. In Maine, the COTP is the Commander of the U.S. Coast Guard Sector Northern New England (COTP, SNNE). Before the Coast Guard’s recent reorganization to Sectors, this title was COTP, Portland, Maine. Despite the recent name change, the COTP’s authority remains intact.
To best illustrate what an actual safety and security zone is, the following is quoted from 33 Code of Federal Regulations Part 165 and pertains to LPG vessel transits occurring in COTP SNNE zone:
165.103 Safety and Security Zones; LPG Vessel Transits in Portland, Maine Captain of the Port Zone, Portsmouth Harbor, Portsmouth, New Hampshire.
(a) Location. The following areas are safety and security zones:
(1) Except as provided in paragraph (a) (2) of this section, all navigable waters of the Portland, Maine, Captain of the Port zone, as defined in 33 CFR 3.0515, one mile ahead, one half mile astern, and 1000-yards on either side of any Liquefied Petroleum Gas vessel.
(2) All waters of the Piscataqua River within a 500-yard radius of any Liquefied Petroleum Gas (LPG) vessel while it is moored at the LPG receiving facility on the Piscataqua River, Newington, New Hampshire.
(b) Definitions. For purposes of this section, navigable waters of the United States includes all waters of the territorial sea as described in Presidential Proclamation No. 5928 of December 27, 1988. Presidential Proclamation No. 5928 of December 27, 1988 declared that the territorial sea of the United States extends to 12 nautical miles from the baseline of the United States.
(1) In accordance with the general regulations in §§165.23 and 165.33 of this part, entry into or movement within these zones is prohibited unless previously authorized by the Captain of the Port (COTP), Portland, Maine.
(2) All persons and vessels shall comply with the instructions of the COTP or the designated on-scene U.S. 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. Emergency response vessels are authorized to move within the zone, but must abide by restrictions imposed by the Captain of the Port.
(3) No person may swim upon or below the surface of the water within the boundaries of the safety and security zones unless previously authorized by the Captain of the Port, Portland, Maine or his authorized patrol representative.
(d) The Captain of the Port will notify the maritime community and local agencies of periods during which these safety and security zones will be in effect by providing notice of arrivals and departures of LPG vessels via the telephone and/or Marine Safety Information Radio Broadcasts.
It should be noted that all safety and security zones are site specific and the conditions and parameters of each are solely dependent on the surrounding and/or extenuating conditions. For example, the stand-off distances cited in the above safety zone may vary significantly from one waterway to another, depending on local circumstances, cargoes carried, and needs dictated. What doesn’t change, for U.S. safety/security zones, is that only the Coast Guard COTP has authority to determine who may enter a zone, and under what conditions. The COTP may delegate that authority to lawful designated on-scene representatives, who are usually just Coast Guard personnel. In Maine, under a memorandum of understanding with the State, the Maine Marine Patrol may also enforce U.S. Coast Guard safety/security zones.
As indicated in the example above, the Coast Guard’s jurisdiction is limited to U.S. navigable waters and its territorial seas (for the purposes of this part of the regulations). Obviously then, COTP SNNE does not have the authority to establish and/or enforce a safety and/or security zone in Canada’s, or any other country’s, waters. In the case of the Passamaquoddy Bay proposals, a significant portion of the transit route intended for use by transiting LNG carriers to reach proposed LNG terminals in Maine is contained entirely in Canadian waters. As well, much of the proposed transit route straddles the international boundary. This complication creates a sensitive issue that deserves considerable thought and continued dialogue between the two countries. The safety and security of the population, property, and maritime environment on both sides of the border are of equal concern. To be sure, the issue is under mutual consideration and is being addressed by the U.S. Coast Guard and Transport Canada jointly. Additionally, the U.S. Coast Guard continues to study all other waterway issues associated with these projects as part of its ongoing review of the draft proposals. Questions may be directed to Mr. Alan Moore of the SNNE staff at (207) 767-0338.
WEBMASTER'S COMMENTS: Statements made by Quoddy Bay LLC President Don Smith, and by his marine consultant Jerzy "Jerry" Kichner that local pilots would allow local fishermen to remain fishing inside the Safey/Security Zone are thus proven to be false and without merit.