[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Proposed Rules]
[Pages 8915-8918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4842]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-016]
RIN 2115-AA97


Safety and Security Zones; Boston, Massachusetts Captain of the 
Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Coast Guard proposes to establish one temporary and three 
permanent safety and security zones within the Boston Marine Inspection 
and Captain of the Port Zone. The safety and security zones will 
prohibit entry into or movement within a portion of Boston and Salem 
Harbors and are needed to ensure public safety and prevent sabotage or 
terrorist acts against vessels and the Port of Boston.

DATES: Comments and related material must reach the Coast Guard on or 
before March 8, 2002.

ADDRESSES: MSO Boston 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 MSO Boston between 8 a.m. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT:
    LT Dave Sherry, Maritime Security Operations, MSO Boston, at 617-
223-3030.

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-
016, indicate the specific section of this document to which each 
comment applies, and give the reason for each comment.
    You have until March 8, 2002 to comment on this proposed rule 
involving Boston and Salem Harbors. This short comment period will 
permit the Coast Guard to publish a final rule before the expiration of 
the existing temporary RNA (CGD01-01-162; published in the Federal 
Register September 27, 2001, 66 FR 49280), safety and security zones. 
These proposed measures were implemented as a temporary emergency 
rulemaking shortly following the terrorist attacks of September 11, 
2001. That emergency rulemaking is discussed herein under the 
Background and Purpose section of this preamble.
    These measures were implemented to ensure the safety of the vessels 
whose movement is being regulated, others in the maritime community, 
surrounding communities and the public from possible terrorist attacks 
aimed at vessels or committed from vessels. Temporary safety and 
security zones were also promulgated to ensure the security of 
vulnerable waterfront areas. This proposed rulemaking would make 
permanent those temporary emergency regulations. As those regulations 
expire on March 15, 2002, a shortened comment period is necessary to 
ensure that there is no gap in these regulations in order to provide 
continuous security for the waterfront areas protected by the 
rulemaking.
    As the public and maritime community have been operating under 
these regulations since September 18, 2001, there is a basis for the 
public providing constructive comments from actual experience with the 
temporary regulations in a brief period of time. Due to this shortened 
comment period, in order to provide additional notice to the public, we 
will do the following: place a notice of our proposed rule in the local 
notice to mariners, post the published Notice of Proposed Rulemaking on 
the MSO Boston Web site at http://www.uscg.mil/d1/units/msobos/, and 
advise port users of the published NPRM at local port operator group 
meetings.
    Please submit all comments and related material in an unbound 
format, no larger than 8\1/2\ 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.
    In our final rule, we will include a concise general statement of 
the comments received and identify any changes from the proposed rule 
based on the comments. If as we expect, we make the final rule 
effective less than 30 days after publication in the Federal Register, 
we will explain our good cause for doing so as required by 5 U.S.C. 
553(d)(3).

Public Meeting

    We do not now plan to hold a public meeting. However, you may 
submit a request for a meeting by writing to Marine Safety Office 
Boston at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that a public meeting would aid this 
rulemaking, we will hold one at a time and place announced by a 
separate notice in the Federal Register.

Background and Purpose

    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 on 
the same day. National security and intelligence officials warn that 
future terrorist attacks are likely. Immediately following the 
September 11 attacks, a temporary rule published in the Federal 
Register (66 FR 49280, September 27, 2001) established temporary 
anchorage grounds, Regulated Navigation Areas, and safety and security 
zones in the Boston, Massachusetts Marine Inspection Zone and Captain 
of the Port Zone. These measures were taken to safeguard human life, 
vessels and waterfront facilities from sabotage or terrorist acts. That 
rule expires on March 15, 2002.
    The Coast Guard proposes to establish permanent safety and security 
zones in Boston and Salem Harbors as part of a comprehensive, port 
security regime designed to safeguard human life, vessels and 
waterfront facilities from sabotage or terrorist acts. Due to continued 
heightened security concerns, permanently available safety and security 
zones in Boston and Salem Harbor are prudent provide for the safety of 
the port. The Captain of the Port will determine when these zones are 
enforced based on potential threats and may establish conditions under 
which vessels are allowed to enter, transit or operate within these 
zones.
    Under the proposed rule, the Coast Guard would establish one 
temporary and three permanent safety and security zones having 
identical boundaries, around Coast Guard Integrated Support Command, 
Boston, the Distrigas Marine Terminal in Everett, MA, the PG & E power 
Plant in Salem, MA, and in the Reserved Channel, Boston, MA. These 
zones would restrict entry into or movement within portions of Boston 
Inner Harbor. The one temporary safety

[[Page 8916]]

and security zone will be around the Distrigas terminal. It is needed 
to extend the effective time period of a previous zone created around 
Distrigas under CGD01-01-162 until this zone can be made permanent 
under a separate regulation more suited to its inclusion. These zones 
are deemed necessary due to the vulnerable nature of these locations as 
possible targets of terrorist attack.
    The Captain of the Port anticipates some impact on vessel traffic 
due to this proposed regulation. However, the safety and security zones 
are deemed necessary for the protection of life and property within the 
COTP Boston zone.

Discussion of Proposed Rule

Safety and Security Zones.

    This proposed rule will establish one temporary and three permanent 
safety and security zones having identical boundaries. Three of these 
proposed zones are being established by reference to a radius around an 
easily identifiable landmark; the other is defined by an area enclosed 
by a line connecting two easily identifiable landmarks. These four 
zones are proposed in the following areas: (1) All waters of the Mystic 
River within a 500-yard radius of the Distrigas terminal pier in 
Everett, MA; (2) All waters of Boston Harbor, including the Reserved 
Channel, west of a line connecting the southeastern tip of the Black 
Falcon Pier and the northeastern corner of the Paul W. Conley Marine 
Terminal pier; (3) All waters of Boston Inner Harbor within a 200-yard 
radius of Pier 2 at the Coast Guard Integrated Support Command Boston, 
Boston, MA; and (4) All waters of Salem Harbor within a 500-yard radius 
of the PG & E U.S. Generating power plant pier in Salem, MA.
    The proposed zone surrounding the Reserved Channel is necessary due 
to the high vulnerability of the Reserved Channel as a target for 
subversive activity or terrorist attack. The Reserved Channel covers 
Black Falcon Cruise Terminal, at which numerous cruise ships tie up 
each year. The proposed zones in the Reserved Channel would protect 
these cruise ships from subversive activity or terrorist attack for 
which they are vulnerable targets due to the significant number of 
casualties that would be incurred by an attack from the water. The 
proposed zone around the Coast Guard Integrated Support Command is 
necessary in order to ensure the safety and security of this military 
facility, and to protect Coast Guard and other vessels moored at this 
facility from subversive activity or terrorist attack.
    The proposed zone around the PG & E facility is needed to protect 
both vessels moored at this facility and the vital infrastructure the 
terminal represents from subversive activity or terrorist attack. The 
one proposed temporary safety and security zone will be around the 
Distrigas terminal and is needed to protect both vessels moored at this 
facility and the vital infrastructure the terminal represents as well. 
The temporary safety and security zones around the Distrigas facility 
imposed by the temporary rule published September 27, 2001 are 
scheduled to expire on March 15, 2002. The safety and security zones 
proposed in this rulemaking are proposed to provide continuity in the 
protection of this facility from March 15, 2002, until June 15, 2002, 
when permanent regulations are to be implemented.
    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 $100,000), 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.
    No person or vessel may enter or remain in a prescribed safety or 
security zone at any time without the permission of the Captain of the 
Port. Each person or vessel in a safety or 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 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.

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 
Transportation (DOT)(44 FR 11040, February 26, 1979).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT 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 some of the safety and security 
zones in Boston Harbor and the proposed zone in Salem Harbor; and the 
local maritime community will be informed of the zones via marine 
information broadcasts. While recognizing the potential impacts, the 
Coast Guard still deems that these safety and security zones are need 
to protect the ports of Boston and Salem and the public.

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 a portion of Boston and 
Salem Harbor in which entry would be prohibited by safety or security 
zones.
    This proposed rule would not have a significant impact on a 
substantial number of small entities because the majority of the 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 Port of Boston are deemed to be low.
    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.

[[Page 8917]]

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want 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 contact LT Dave Sherry, 
Maritime Security Operations, Marine Safety Office Boston, at 617-223-
3030.

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 proposed 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 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 
create an environmental risk to health or risk to safety that might 
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. 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, (34)(g), of 
Commandant Instruction M16475.lD, this rule is categorically excluded 
from further environmental documentation. A ``Categorical Exclusion 
Determination'' is available in the docket where indicated under 
ADDRESSES.

List of Subjects 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 proposes 
to amend 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. From March 15, 2002 until June 15, 2002, add temporary section 
Sec. 165.T01-006 to read as follows:


Sec. 165.T01-006  Safety and Security Zones: Mystic River, Everett, MA.

    (a) Safety and Security Zones. The following are established as 
safety and security zones: All waters of the Mystic River within a five 
hundred (500) yard radius of the Distrigas terminal pier in Everett, 
MA;
    3. Add Sec. 165.105 to read as follows:


Sec. 165.105  Safety and Security Zones: Boston Marine Inspection Zone 
and Captain of the Port Zone.

    (a) Safety and Security Zones. The following are established as 
safety and security zones:
    (1) All waters of Boston Harbor, including the Reserved Channel, 
west of a line connecting the Southeastern tip of the Black Falcon pier 
and the Northeastern corner of the Paul W. Conley Marine Terminal pier.
    (2) All waters of Boston Inner Harbor within a two hundred (200) 
yard radius of Pier 2 at the Coast Guard Integrated Support Command 
Boston, Boston, MA.
    (3) All waters of Salem Harbor within a five hundred (500) yard 
radius of the PG & E U.S. generating power plant pier in Salem, MA.
    (b) Effective date. This section is effective beginning March 15, 
2002.
    (c) Regulations. (1) In accordance with the general regulations in 
Secs. 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 
Boston.
    (2) All vessel operators 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, local, state, and federal law enforcement vessels.
    (3) No person may enter the waters within the boundaries of the 
safety and security zones unless previously authorized by the Captain 
of the Port, Boston or his authorized patrol representative.


[[Page 8918]]


    Dated: February 15, 2002.
B.M. Salerno,
Captain, U. S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 02-4842 Filed 2-25-02; 2:50 pm]
BILLING CODE 4910-15-U