[Federal Register Volume 69, Number 62 (Wednesday, March 31, 2004)]
[Proposed Rules]
[Pages 16860-16862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7109]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-017]
RIN 1625-AA00


Safety and Security Zones; Boston Harbor, MA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to remove the safety and security 
zones around the Pacific Gas and Electric (PG & E) Power Plant Terminal 
Wharf, Salem, Massachusetts, because the Captain of the Port Boston has 
determined that these zones are no longer needed. If this proposed rule 
is adopted as final, those seeking to enter these waters in Salem 
Harbor around the PG & E facility would no longer need to seek 
permission of the Captain of the Port.

[[Page 16861]]


DATES: Comments and related material must reach the Coast Guard on or 
before June 1, 2004.

ADDRESSES: You may mail comments and related material to Marine Safety 
Office (MSO) Boston, 455 Commercial Street, Boston, Massachusetts 
02109. 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: Chief Petty Officer Daniel Dugery, 
Waterways Safety and Response Division, Marine Safety Office Boston, at 
(617) 223-3000.

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 (CGD01-04-
017), 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 
that 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.

Public Meeting

    We do not now plan to hold a public meeting. But 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

    As a result of the terrorist attacks on the World Trade Center and 
Washington, DC, on September 11, 2001, several security measures were 
enacted to protect vessels and facilities throughout the Captain of the 
Port Boston zone. On July 11, 2002, a final rule was published in the 
Federal Register (67 FR 45909) creating several permanent safety and 
security zones in Boston and Salem Harbors under 33 CFR 165.116. One 
element of this regulation included the creation of safety and security 
zones around the Pacific Gas and Electric (PG & E) Power Plant Terminal 
in Salem, Massachusetts (33 CFR 165.116(a)(3)).
    These zones were created to safeguard the facility, persons at the 
facility, and the public and surrounding communities from sabotage or 
other subversive acts, accidents, or other events of a similar nature. 
Aside from protecting the facility and vessels from the new general 
terrorist threat, reasons for creating these zones in this location 
included historical occurrences of hostile protesters attempting to 
gain access to the facility. Since the publication of this regulation, 
however, the risk environment is better defined, and other security 
measures have been enacted, both of which support eliminating the 
permanent safety and security zones.
    Despite initial concerns, the Coast Guard has found it unnecessary 
to continuously enforce these zones since their inception. With respect 
to the threat, there is no current specific threat to the PG & E 
terminal nor to ships destined there. Additionally, there have been no 
recent instances of protesters or other violent acts in that area. The 
risk that the vessels themselves pose to the terminal or surrounding 
area is relatively low, due to the non-volatile/non-explosive nature of 
their heavy fuel oil or coal cargoes. Lastly, under the Maritime 
Transportation Act of 2002 regulations, PG & E is required to institute 
terminal security procedures, which include preventing unauthorized 
access onto the facility from the waterside.
    Since the expectation for permanent safety and security zones is 
that they will be enforced on a regular basis, the presence of these 
zones requires the expenditure of scarce Coast Guard resources. The 
relatively low risk posed and the experience over the past 2 years, as 
discussed above, support elimination of the permanent zones. In the 
event of a change to the threat environment, the Captain of the Port 
can quickly establish a temporary security zone to protect the PG & E 
terminal and/or associated vessels.

Discussion of Proposed Rule

    This proposed rule would amend 33 CFR 165.116 by removing paragraph 
(a)(3) which describes 250-yard safety and security zones around the 
PG&E Power Plant Terminal Wharf, Salem, Massachusetts. The remaining 
zones in Sec.  165.116--Reserved Channel, Boston Harbor and Boston 
Inner Harbor--would remain in effect and unchanged. Our proposed rule 
also removes paragraph (b), Effective date, because it is not needed.

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 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. This proposed rule will not 
create a safety and security zone, but instead will remove an existing 
security zone thereby removing any perceived impediment to the maritime 
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.
    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 (Pub. L. 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

[[Page 16862]]

governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Chief Petty 
Officer Daniel Dugery, Waterways Safety and Response Division, Marine 
Safety Office Boston, at (617) 223-3000.

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 affect 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.1D, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have 
concluded that there are no factors in this case that would limit the 
use of a categorical exclusion under Section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1. 
paragraph (34)(g), of the Instruction, from further environmental 
documentation. A draft ``Environmental Analysis Check List'' and a 
draft ``Categorical Exclusion Determination'' (CED) are available in 
the docket where indicated under ADDRESSES. Comments on this section 
will be considered before we make the final decision on whether the 
rule should be categorically excluded from further environmental 
review.

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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Revise Sec.  165.116 to read as follows:


Sec.  165.116  Safety and Security Zones: Boston Harbor, Massachusetts.

    (a) Location. The following areas are permanent safety and security 
zones:
    (1) Reserved Channel, Boston Harbor. All waters of Boston Harbor 
within one hundred fifty (150) yards off the bow and stern and one 
hundred (100) yards abeam of any vessel moored at the Massachusetts 
Port Authority Black Falcon Terminal;
    (2) Boston Inner Harbor. All waters of Boston Harbor within one 
hundred (100) feet of the Coast Guard Integrated Support Command (ISC) 
Boston piers.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 and Sec.  165.33 of this part, entry into or movement 
within these zones 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 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: March 8, 2004.
Brian M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 04-7109 Filed 3-30-04; 8:45 am]
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