[Federal Register Volume 67, Number 51 (Friday, March 15, 2002)]
[Rules and Regulations]
[Pages 11577-11579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6459]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-01-162]
RIN 2115-AA97, 2115-AA97, and 2115-AA98


Anchorages, Regulated Navigation Areas, Safety and Security 
Zones; Boston Marine Inspection Zone and Captain of the Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is revising a temporary final rule 
(Sec. 165.T01-171) published September 27, 2001. This change will 
extend the effective period for four temporary safety and security 
zones in this rule until June 30, 2002, allowing us adequate time to 
conduct a rulemaking to make these four safety and security zones 
permanent. The anchorage area restrictions (Sec. 110.T01-162) and 
regulated navigation areas (Sec. 165.T01-162) created by the rule 
published September 27, 2001 will expire as provided in that rule on 
March 16, 2002.

DATES: Section 165.T01-171 is revised effective March 15, 2002 and will 
remain effective until June 30, 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:

Regulatory History

    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.
    For these same reasons, 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. This rulemaking is 
urgently required to prevent future terrorist strikes within and 
adjacent to waters within the areas protected by these safety and 
security zones. 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 area vulnerable to subversive activity, 
sabotage or terrorist attack.

Background and Purpose

    On September 27, 2001, we published a temporary final rule creating 
anchorage area restrictions, three regulated navigation areas and five 
safety and security zones in the Boston Marine Inspection Zone and 
Captain of the Port Zone. (66 FR 49280). One of the safety and security 
zones, Sec. 165.T01-171 (a)(4), for Pilgrim Nuclear Power Plant has 
been removed by a different temporary final rule (67 FR 1607, January 
14, 2002), which was followed by an NRPM for a permanent rule (67 FR 
4218, January 29, 2002).
    We have determined that the anchorage area restrictions and three 
regulated navigation areas will not be

[[Page 11578]]

needed after their current expiration date, March 16, 2002.
    As indicated by an NPRM we published last month, and in the reasons 
supporting our finding of good cause, we do see a need to continued the 
four remaining safety and security zones in temporary 33 CFR 165.T01-
171. (67 FR 8915, February 27, 2002). We are extending the effective 
period of these zones until June 30, 2002, to allow us to issue a 
supplemental NPRM with a longer comment period on the proposal to make 
these safety and security zones permanent.

Safety and Security Zones

    The rule extends the effective period for four distinct safety and 
security zones, having identical boundaries. Three of these zones are 
being established by reference to a radius around a particular 
coordinate or easily identifiable landmark. One zone is being 
established by reference to readily identifiable boundaries. All of the 
zones are being established in order to protect the waterfront 
facilities, terminals, power plants, as well as persons and vessels 
from subversive or terrorist acts. No person or vessel may enter or 
remain in the prescribed safety and security zones 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. 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 safety or 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.

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 Transportation 
(DOT)(44 FR 11040, February 26, 1979).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT is unnecessary. This 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 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 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 does 
not have a significant economic impact on a substantial number of small 
entities. This 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 rule does 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 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.

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 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 
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 rule does not call for 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 does 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.

[[Page 11579]]

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 might 
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. We invite your 
comments on how this rule might impact tribal governments, even if that 
impact may not constitute a ``tribal implication'' under the Order.

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

    The Coast Guard considered the environmental impact of this 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.

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. Revise Sec. 165.T01-171 published at 66 FR 49283-49284 to read 
as follows:


Sec. 165.T01-171  Safety and Security Zones: Boston Marine Inspection 
Zone and Captain of the Port Zone.

    (a) Location. The following are established as safety and security 
zones:
    (1) All waters of the Mystic River within a five hundred (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 North Jetty and 
the Northeastern corner of the Paul W. Conley Marine Terminal pier.
    (3) 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.
    (4) 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 dates. This section is effective from September 18, 
2001 until June 30, 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: March 12, 2002.
G. N. Naccara,
Rear Admiral, U.S. Coast Guard, District Commander, First U.S. Coast 
Guard District.
[FR Doc. 02-6459 Filed 3-13-02; 3:48 pm]
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