[Federal Register Volume 67, Number 82 (Monday, April 29, 2002)]
[Proposed Rules]
[Pages 20937-20940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10471]


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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, Boston and Salem Harbors, MA

AGENCY: Coast Guard, DOT.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing safety and security zones around 
vessels when they are moored at the Black Falcon Terminal, Boston, MA 
and the P G & E Power Plant Terminal, Salem, MA. We are also proposing 
continuous safety and security zones around the Coast Guard Integrated 
Support Command (ISC) Boston, MA. These safety and security zones would 
prohibit entry into or movement within portions of Boston and Salem 
Harbors and are needed to ensure public safety and prevent sabotage or 
terrorist acts against facilities and vessels with the potential for 
catastrophic damage and casualties if successful.

DATES: Comments and related materials to reach the Coast Guard on or 
before May 29, 2002.

ADDRESSES: You may mail comments and related material to Marine Safety 
Office Boston, 455 Commercial Street, Boston, MA. Marine Safety Office 
Boston maintains the public docket for this rulemaking. Comments and 
materials received from the public, as well as documents indicated in 
this preamble as being available in the docket, will become part of the 
docket and will be available for inspection or copying at Marine Safety 
Office Boston 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 (CGD1-02-
016), 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 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 proposed 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.

Background and Purpose

    The terrorist attacks on New York, New York and Washington, DC on 
September 11, 2001, inflicted catastrophic human casualties and 
property damage. National security and intelligence officials warn that 
future terrorist attacks are likely. Following the September 11 
attacks, we published a temporary rule in the Federal Register 
September 27, 2001 (66 FR 49280), establishing 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.
    We published a notice of proposed rulemaking (NPRM) on February 27, 
2002 (67 FR 8915), proposing to make permanent three of the safety and 
security zones established by the September 27 temporary rule, and to 
make the safety and security zones around the Distrigas Liquefied 
Natural Gas Facility effective for an additional period. That NPRM 
provided for a short comment period, which would have allowed the zones 
to be effective on March 16, 2002. This short comment period was 
intended to prevent any lapse in protective measures provided by the 
temporary rule. The comment period for that proposed rule did not allow 
adequate time for public comment.
    In order to provide additional time for public comment, the Coast 
Guard extended the effective period of four of the safety and security 
zones established in September 2001--namely those zones around Coast 
Guard Integrated Support Command, Boston, the PG & E Power Plant in 
Salem, MA, in the Reserved Channel, Boston, MA, and the Distrigas 
Liquefied Natural Gas Facility in Everett, Massachusetts--until June 
30, 2002. That extension was published March 15, 2002 (67 FR 11577). 
The regulated navigation areas and anchorage ground established in 
September 2001 expired as scheduled on March 15, 2002. In response to 
comments already received, the Coast Guard is amending the parameters 
of the proposed safety and security zones, as discussed in the 
Discussion of Comments section below. The safety and security zones 
proposed at the Distrigas Facility are being incorporated into a 
separate rulemaking, and are therefore no longer proposed in this 
supplemental notice of proposed rulemaking (SNPRM).
    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, permanent safety and security zones in 
Boston and Salem Harbor are prudent to provide for the safety of the 
port, the facilities, and the public. This proposed rule would 
establish three pairs of safety and security zones having identical 
boundaries, around Coast Guard Integrated Support Command, Boston, 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 and Salem Harbor. These zones are deemed necessary due to the 
vulnerable nature of these locations as possible targets of terrorist 
attack. Entry into or movement within these safety and security zones 
is prohibited unless authorized by the Captain of the Port, Boston. 
Mariners may request entry into these safety and security zones from 
the Coast Guard representative on scene.
    The Captain of the Port anticipates some impact on vessel traffic 
due to this proposed regulation. However, the impact would be minimal, 
and the safety and security zones are deemed necessary for the 
protection of life and property within the COTP Boston zone.
    No person or vessel would be allowed to remain in the proposed 
safety and security zones at any time without the

[[Page 20938]]

permission of the Captain of the Port, Boston, MA. Each person or 
vessel in the proposed safety and security zone must obey any direction 
or order of the Captain of the Port, Boston, MA. The Captain of the 
Port, Boston, MA may take possession and control of any unauthorized 
vessel in the proposed safety and security zone and/or remove any 
unauthorized person, vessel, article or thing from the proposed safety 
and security zone. No person may board, take or place any article or 
thing on board any vessel or waterfront facility in the proposed safety 
and security zone without permission of the Captain of the Port, 
Boston, MA.
    Any violation of the proposed 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 $250,000), 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.

Discussion of Comments and Changes to the Proposed Rule

    The Coast Guard received three comments from the public regarding 
the NPRM published in February 2002. All comments received were 
considered, and have contributed to us amending the proposed zones in 
this SNPRM. The public comments received addressed the burden the zones 
pose on the fishing and recreational boating communities, the effective 
times of the zones, and property located inside the zones.
    Based on the comments received, the Coast Guard has determined that 
the dimensions of the proposed zones are too large, would unreasonably 
impact the public, and would be difficult to adequately enforce. The 
Coast Guard proposes to amend their sizes. The comments and proposed 
changes are:

I. Burden on the Boating Community

    The Coast Guard received comments expressing concern over the 
potential negative impacts this proposal would have on the fishing and 
recreational boating communities. The comments stated that the zones 
might unduly restrict the movement of fishing vessels to and from their 
home piers and their placement of fixed fishing gear.
    In addition, the zones were perceived to unduly restrict the 
movement of recreational mariners to and from their home marinas. At 
the same time, the Coast Guard determined the size of the zones may be 
excessive in terms of providing adequate protection, and would also 
make enforcement difficult. As a result, the Coast Guard has modified 
the zones it proposed in February to minimize the impact these zones 
would have on the recreational boating and fishing communities, and to 
facilitate enforcement.

II. Why Must This Regulation Be in Effect at All Times?

    The Coast Guard received comments seeking to make the proposed 
regulation in effect ``only at times of high risk.'' ``High risk'' 
periods may not always be predictable by the public or the Coast Guard. 
Having the regulation in effect at all times provides maximum 
flexibility to respond to changing threat conditions. In addition, 
making the regulation effective only at certain times with regards to 
``high risk'' periods can cause confusion among the public. Thus the 
Coast Guard still proposes to make this regulation effective at all 
times. However, the time that two of the three safety and security 
zones under the proposed regulation would be in use would be sporadic--
only at times vessels are moored at Black Falcon and Salem PG & E 
Generating power plant terminals. The Coast Guard may allow access into 
any of the three zones if no safety or security risks are present.

III. How Would This Proposed Rule Affect Property Inside the Proposed 
Zones?

    The Coast Guard received comments from waterfront facilities and 
pier owners located inside the proposed zone areas concerned with how 
the zone would affect their property and business inside the zones. The 
Captain of the Port does not seek to restrict use of public or private 
lands within the boundaries of these proposed zones. The Captain of the 
Port would allow entities in fixed locations within the proposed zone 
boundaries to continue their normal operations; with the caveat that 
this permission may be modified if a security risk is identified on 
property within the zone.

IV. Resulting Changes

    As a result of the comments received and interagency review, we 
propose changes to the safety and security zones in our NPRM published 
February 21, 2002. Where paragraph 165.115 (a)(1) was proposed to read: 
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; it is 
proposed to now read: All waters within 150 yards off the bow and stern 
and 100 yards abeam of any vessel moored at the Massachusetts Port 
Authority Black Falcon Terminal. The intent of this portion of the 
regulation is to protect vessels at the Black Falcon Terminal. These 
new proposed boundaries and criteria provide adequate protection while 
minimizing the impact this zone would have on the recreational boating 
and fishing communities.
    Where paragraph 165.115 (a)(2) was proposed to read: All waters of 
Boston Inner Harbor within a 200-yard radius of Pier 2 at the Coast 
Guard Integrated Support Command Boston, Boston, MA; it is proposed to 
now read: All waters of Boston Harbor within 100 feet of the Coast 
Guard Integrated Support Command (ISC) Boston piers. This change still 
provides adequate protection and was made to allow marine traffic 
adequate space outside the zones to safely transit to and from the 
Charles River.
    Where paragraph 165.115 (a)(3) was proposed to read: All waters of 
Salem Harbor within a 500-yard radius of the PG & E Generating power 
plant pier in Salem, MA; it is proposed to now read: All waters of 
Salem Harbor within a 250-yard radius of the center point of the Salem 
Terminal Wharf located at 42 deg.31.33' N, 070 deg.52.67' W when a 
vessel is moored at the PG & E terminal. The intent of this portion of 
the regulation is to protect vessels at the PG & E Terminal. This 
change was made to accommodate this intent and allow mariners adequate 
space outside the zones to safely transit to the south and east of the 
zone.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866 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 proposed rule 
to be minimal enough that a full regulatory evaluation under paragraph 
10e of the regulatory policies and procedures of DOT is unnecessary. 
This proposed rule would impose zero mandatory costs. The effect of 
this proposed regulation would not be significant for several reasons: 
The proposed zones would prohibit movement in small portions of Boston

[[Page 20939]]

and Salem Harbors, allowing ample room for vessels to navigate around 
the zones and advance notifications would be made to the local maritime 
community via marine information broadcasts and Local Notice to 
Mariners.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard 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 would affect the following entities, some of 
which may be small entities: the owners or operators of vessels 
intending to transit, anchor, or conduct commercial fishing operations 
in a portions of Boston and Salem Harbor. These sections of Boston and 
Salem Harbor do not restrict passenger and commuter vessel routes, do 
not unduly restrict recreational boat traffic, and are so small they 
would have a negligible impact on the commercial fishing industry. For 
these and the reasons enumerated in the Regulatory Evaluation section 
above, these safety and security zones would not have a significant 
economic impact on a substantial number of small entities.

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 proposed 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 proposed rule and you have questions concerning its 
provisions or options for compliance, please call Lieutenant Dave 
Sherry, Marine Safety Office Boston, at (617) 223-3030. 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 proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    The Coast Guard analyzed this proposed 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 proposed rule would not impose an unfunded mandate.

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

    The Coast Guard analyzed this proposed rule under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This proposed 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 proposed 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 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.

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.

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 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. Add Sec. 165.115 to read as follows:


Sec. 165.115  Safety and Security Zones: Salem and Boston Harbors, 
Massachusetts.

    (a) Location. The following areas are safety and security zones:
    (1) All waters within 150 yards off the bow and stern and 100 yards 
abeam of any vessel moored at the Massachusetts Port Authority Black 
Falcon Terminal.
    (2) All waters of Boston Harbor within 100 feet of the Coast Guard 
Integrated Support Command (ISC) Boston piers and;
    (3) All waters of Salem Harbor within a 250-yard radius of the 
center point of

[[Page 20940]]

the Salem Terminal Wharf located at 42 deg.;31.33' N, 070 deg.52.67' W 
when a vessel is moored at the PG & E Power Plant Terminal.
    (b) Effective date. This section becomes effective July 1, 2002.
    (c) Regulations. (1) In accordance with the general regulations in 
Secs. 165.23 and 165.33, entry into or movement within this zone is 
prohibited unless authorized by the Captain of the Port (COTP) 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 or land area within the 
boundaries of the safety and security zones unless previously 
authorized by the Captain of the Port, Boston or his authorized patrol 
representative.

    Dated: April 11, 2002.
B.M. Salerno,
Captain, U. S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 02-10471 Filed 4-26-02; 8:45 am]
BILLING CODE 4910-15-P