[Federal Register Volume 67, Number 82 (Monday, April 29, 2002)]
[Rules and Regulations]
[Pages 20909-20913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10407]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-01-227]
RIN 2115-AA97


Safety and Security Zones; High Interest Vessels--Boston Harbor, 
Weymouth Fore River, and Salem Harbor, MA

AGENCY: Coast Guard, DOT.

ACTION: Interim rule with request from comments.

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SUMMARY: The Coast Guard is establishing interim safety and security 
zones for vessels determined to be in need of a Coast Guard escort by 
the Captain of the Port (COTP), Boston. The safety and security zones 
for these escorted vessels will close all waters of Boston Harbor 1000 
yards ahead and astern, and 100 yards on each side of an escorted 
vessel in transit. These safety and security zones are needed to 
safeguard the vessels, the public, and the surrounding area from 
sabotage or other subversive acts, accidents, or other events of a 
similar nature. The zones will prohibit entry into or movement within 
this portion of the COTP Boston zone without COTP authorization.

DATES: This interim rule becomes effective May 29, 2002. Comments and 
related materials regarding this interim rule must reach the Coast 
Guard by June 28, 2002.

ADDRESSES: Documents as indicated in this preamble are part of docket 
CGD01-01-227 and are available for inspection or copying at Marine 
Safety Office Boston, 455 Commercial Street, Boston, MA between the 
hours of 8 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Dave Sherry, Marine Safety 
Office Boston, Maritime Security Operations Division, 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 (CGD01-01-
227), 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 
8\1/2\ by 11 inches, suitable for copying. If you would like

[[Page 20910]]

to know your comments 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 interim 
rule in view of them.

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.

Regulatory History

    A notice of proposed rulemaking (NPRM) was published on January 18, 
2002 in the Federal Register (67 FR 2614). The comment period in that 
NPRM expired February 28, 2002. The Coast Guard is now proceeding to 
implement the proposal with changes on an interim basis, allowing for 
further public comment until June 28, 2002 for consideration in 
development of the final rule.

Background and Purpose

    The September 11, 2001 terrorist attacks on New York City and 
Washington, DC inflicted catastrophic human casualties and property 
damage. National security and intelligence officials warn that future 
terrorist attacks are likely. Due to these heightened security 
concerns, safety and security zones are prudent for vessels that may be 
likely targets of terrorist acts. This interim rule establishes safety 
and security zones for vessels the Captain of the Port (COTP) Boston 
determines are in need of a Coast Guard escort (``Escorted Vessels'' or 
``EVs'').

Discussion of Interim Rule

    The safety and security zones would prohibit entry into or movement 
in all waters 1000 yards ahead or astern, and 100 yards on each side of 
any EV in the following waters of the Boston Captain of the Port Zone: 
All waters of Boston Inner Harbor, including the waters of the Mystic 
River, Chelsea River, and Reserved Channel west of a line running from 
Deer Island Light, at position 42 deg.20'25" N, 070 deg.57'15" W, to 
Long Island, at position 42 deg.19'48" N, 070 deg.57'15" W, and west of 
the Long Island Bridge, running from Long Island to Moon Head. For the 
purposes of this rule, EVs operating in Boston Harbor include any 
vessel (as defined under 46 U.S.C. section 2101) deemed to be in need 
of an escort due to increased security risks present and identified by 
the COTP under the circumstances.
    Whether a vessel is considered an EV is determined by the Captain 
of the Port Boston based on the potential threat posed by the vessel 
(or cargo aboard) to the safety and/or security to the maritime 
community, the crews or passengers of the EVs, and the surrounding 
communities from subversive or terrorist attack.
    The safety and security zones are necessary to protect the EVs, 
their crews and/or passengers, others in the maritime community, and 
the surrounding local communities from subversive or terrorist attack 
against a vessel which could, by the nature of its cargo or the 
destructive capability of the vessel structure itself, potentially 
inflict a large number of casualties or otherwise have a serious 
negative impact on vessels, the port, or the environment. Since large 
commercial vessels fall into the description above, it is expected that 
the vast majority of vessels this rule is used to protect will be large 
commercial vessels restricted to the Boston ship channel.
    The COTP Boston anticipates some impact on vessel traffic due to 
this regulation. However, as discussed in the Regulatory Evaluation 
section below, the impact is anticipated to be minimal. In addition, 
the safety and security zones are deemed necessary for the protection 
of life and property within the COTP Boston zone. Public notifications 
will be made prior to the effective period of this regulation via local 
notice to mariners. Marine information broadcasts will be utilized to 
notify the public of EV transits.
    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 or Coast Guard representative on scene. The COTP 
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 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 under the authority 
contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.

Discussion of Comments and Changes Implemented in the Interim Final 
Rule

    The Coast Guard received 22 comments from the public regarding this 
proposal. All comments received were considered in the development of 
this interim final rule (IFR). Some changes implemented in the IFR are 
a result of inter-Coast Guard evaluations of how to better employ and 
enforce the regulation. A significant number of the changes are the 
result of comments and recommendations of stakeholders in the COTP 
Boston zone. These stakeholders include maritime industry, marina 
operators, the maritime law community, recreational boaters, the 
Massachusetts Port Authority, and the commercial fishing industry. The 
comments and respective changes (if any) are addressed below.

I. The Definition of What Type of Vessel (``High Interest Vessel'') 
This Regulation Applies to Is Unclear

    The original proposed safety and security zones published in the 
Federal Register (67 FR 2614, January 18, 2002) were developed to 
protect High Interest Vessels (HIVs). Since that time the definition of 
HIVs for the purposes of Coast Guard maritime security operations and 
this regulation have diverged. As a result, vessels in need of 
protection under this regulation have been termed ``Escorted Vessels.'' 
Additionally, in the proposal we provided examples of cargoes and 
vessel types that might be considered HIVs. The list was not exclusive, 
but was meant to provide examples of the types of vessels which may be 
considered high risk. These examples were not essential to the 
regulation and created some confusion among the public. As a result 
they have been removed, since the intent of the regulation is to allow 
the COTP the flexibility to protect any vessel found to be in need of 
such protection.

II. The Term Vessel at Anchor Is Not Clearly Defined

    Many comments stated concerns with the potential application of 
these safety and security zones to vessels at anchor. Some comments 
thought this would make the regulation applicable to moored vessels as 
well. It was determined that vessels to which this regulation would 
apply would not be allowed to anchor within Boston Harbor, and in fact 
would be required to anchor in Broad Sound well offshore of Boston 
Harbor if they anchored at all. In

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addition, the regulation was originally designed to fill a need to 
protect and provide escorts for moving vessels. As a result, all 
references to anchored vessels have been removed from the proposal.

III. EVs Entering the Weymouth Fore River and Salem Harbor Would 
Force Other Vessels Onto Shoals To Move Out of the Way. Enforcement 
in the Narrow Fore River Channel Would Be Near Impossible

    Many comments raised concerns with EVs transiting the narrow 
channels and harbors of Salem and Weymouth. These comments raised 
concerns that other vessels located in the channels would have 
insufficient room to maneuver out of the way of an oncoming EV and 
associated safety and security zones. Due to the infrequent nature of 
commercial vessel transits in these two areas, coupled with the highly 
infrequent nature of the COTP designating EVs, we have determined that 
benefits of this regulation do not outweigh the enforcement 
complications of these safety and security zones in these areas. As a 
result this rule will only be effective in Boston Harbor, and will not 
be effective in Salem Harbor and the Weymouth Fore River, as originally 
proposed. Should the need arise, the Coast Guard will enact temporary 
regulations to protect vessels in these areas.

IV. An EV May Have the Potential To ``Freeze'' the Charles River 
Locks

    Some comments presented concerns with the moving safety and 
security zones having an impact on recreational vessels attempting to 
transit the Charles River Dam during an EV transit. This regulation 
will be used to protect vessels deemed to be in need of escort 
protection by the COTP Boston. If the COTP needed to protect a vessel 
transiting in the vicinity of the Charles River Dam, other vessels 
would have to wait for the EV to pass or request permission to transit 
in its vicinity. However, it is expected that the vast majority of such 
vessels will be large commercial vessels restricted to the Boston Ship 
Channel. In this case we have determined that the zones are not large 
enough to extend from the main ship channel to the Charles River Dam.

V. All Vessel Traffic Would Have To ``Freeze'' in Place as Soon as 
an EV Enters the Harbor

    Some comments raised concerns that as soon as an EV entered the 
Boston Harbor, all vessels would have to ``freeze'' in place. 
Traditionally, the Coast Guard grants access to vessels wishing to 
transit through a safety and security zone as long as the vessel does 
not pose a safety or security risk to the commercial vessel in transit, 
and would plan to do the same with this regulation. However, to further 
aid enforcement and the public we have determined that reducing the 
zone from 200 to 100 yards on each side of an EV will provide adequate 
protection for EVs and at the same time reduce the number of requests 
to the Coast Guard representative on scene from vessels wishing to 
enter the moving zones, easing the enforcement burden on escorting 
assets and allowing more space to navigate outside the zones.

VI. Is It Possible To Regulate the Transit Times of EVs To Benefit 
the Boating Community?

    Some comments stated a desire to regulate the arrival and departure 
times of EVs around periods of high recreational boating activity. We 
have determined this is not practical. Large commercial vessels are 
dependant upon many (sometimes unpredictable) variables including tidal 
schedules, quantities of cargo at marine facilities, and the arrivals 
and departures of other vessels, making the management of their 
arrivals highly difficult to accomplish. Attempting to manage their 
transits in this manner would cause undue burden on marine industry and 
negative impacts upon the flow of commerce.

VII. Will This Regulation Economically Impact Marinas?

    Some comments stated concerns that this regulation would impact 
marinas by forcing tenants to vacate their moorings and slips each time 
an EV moving zone passed over their marina. The COTP does not intend to 
force stationary moored boats to move each time an EV safety and 
security zone passes over them, and will not do so unless a security 
risk is identified at that marina. In this case the Coast Guard would 
only remove the boat or person deemed to be a security risk. The spirit 
of the regulation is to prevent vessels from approaching the EV inside 
the zone without Coast Guard permission.

VIII. Will This Regulation Impact the Normal Business of Those on 
Piers, Wharves, Marinas Who Are Not Operating Vessels?

    Some comments expressed concerns over how the moving EV zone would 
impact harbor dock workers and waterfront facilities. Again, the Coast 
Guard does not intend to interfere with events occurring in stationary 
locations (as with the marinas) unless a specific security risk is 
identified on shore. In this case the Coast Guard would address only 
that specific risk.

IX. What Public Outreach Efforts Will the Coast Guard Pursue To 
Educate the Public Boating Community With Regards to This 
Regulation?

    Some comments relayed interest in how the Coast Guard plans to 
inform the public of the specifics of this regulation. The Coast Guard 
plans to conduct a public outreach program through the local Port 
Operators Group, yacht club meetings, pamphlet distribution to mariners 
and industry utilizing the Coast Guard Auxiliary, Local Notice to 
Mariners, and safety marine information broadcasts.

X. How Will This Regulation Impact Local Lobster Fishermen?

    Some comments stated concerns over how this regulation would impact 
the placement of lobster traps. The Captain of the Port anticipates 
minimal impact on lobstermen as with all other waterway users. Since 
the safety and security zones are moving, the lobstermen may simply 
wait the short time it takes for the vessel to pass or request to pass 
through the zone from the Coast Guard representative on scene.

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).
    The Coast Guard expects 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.
    Although this regulation will prevent traffic from moving within a 
portion of Boston Harbor during EV transits, the effect of this 
regulation will not be significant due to the minimal time that vessels 
will be restricted from the area. Further, vessels can pass safely 
around the zones at most points in the Harbor, vessels will only have 
to wait a short time for the EV to pass if they cannot safely pass 
outside the zones, and advance notifications will be made to the local 
maritime community by marine information broadcasts.

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Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard 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 will 
not have a significant economic impact on a substantial number of small 
entities. This interim rule will 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 Harbor during EV 
transits. This rule will not have a significant economic impact on a 
substantial number of small entities due to the following factors: (1) 
The minimal time that vessels will be restricted from the area of the 
zones, (2) vessels can pass safely around the zones at most points in 
Boston Harbor, (3) vessels will only have to wait a short time for the 
EV to pass if they cannot safely pass outside the zones, (4) and 
advance notifications will be made to the local maritime community by 
marine information broadcasts. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this interim 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 (Pub. L. 104-121), the Coast Guard wants to assist 
small entities in understanding this interim rule so that they can 
better evaluate its effects on them and participate in the rulemaking. 
If the 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 at 
the address listed under ADDRESSES.

Collection of Information

    This interim rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    The Coast Guard has analyzed this interim rule under Executive 
Order 13132 and has determined that this rule does not have 
implications for federalism under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This interim rule would not impose an unfunded mandate.

Taking of Private Property

    This interim 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 interim 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 interim rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This interim rule is not an economically significant rule and 
does not pose an environmental risk to health or risk to safety that 
may disproportionately affect children.

Indian Tribal Governments

    This interim rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments. A rule with tribal implications has 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.

Environment

    The Coast Guard has considered the environmental impact of this 
interim 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 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 Sec. 165.114 to read as follows:


Sec. 165.114  Safety and Security Zones: Escorted Vessels--Boston 
Harbor, Massachusetts.

    (a) Location. The following waters within the Boston Captain of the 
Port Zone, 1000 yards ahead and astern, and 100 yards on each side of 
any designated escorted vessel, are established as safety and security 
zones: All waters of Boston Inner Harbor, including the waters of the 
Mystic River, Chelsea River, and Reserved Channel west of a line 
running from Deer Island Light, at position 42 deg.20'25" N, 
070 deg.57'15" W, to Long Island, at position 42 deg.19'48" N, 
070 deg.57'15" W, and west of the Long Island Bridge, running from Long 
Island to Moon Head.
    (b) Escorted vessels defined. For the purposes of this section, 
escorted vessels operating in Boston Harbor include the following: Any 
vessels deemed to be in need of escort protection by the Captain of the 
Port, Boston for security reasons or under other circumstances.
    (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.


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    Dated: April 12, 2002.
B.M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 02-10407 Filed 4-26-02; 8:45 am]
BILLING CODE 4910-15-U