[Federal Register Volume 69, Number 141 (Friday, July 23, 2004)]
[Rules and Regulations]
[Pages 43908-43911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16829]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-002]
RIN 1625-AA87 (Formerly RIN 1625-AA00)


Security Zones; Democratic National Convention, Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard has established a series of temporary security 
zones on the Charles River in the vicinity of the FleetCenter/North 
Station, throughout a portion of Boston Inner Harbor in the vicinity of 
Logan International Airport and surrounding Very Important Person (VIP) 
vessels designated by the Captain of the Port (COTP) Boston, 
Massachusetts, to be in need of Coast Guard escort for security reasons 
while they are transiting the COTP Boston, Massachusetts zone. These 
temporary zones are needed to safeguard protectees, the public, 
designated VIP vessels and crews, other vessels and crews, and the 
infrastructure within the COTP Boston, Massachusetts zone from 
terrorist or subversive acts during the Democratic National Convention 
(DNC): a National Special Security Event (NSSE), being held from July 
26, 2004, to July 29, 2004, at the Fleet Center/North Station 
Facilities, in Boston, Massachusetts. These security zones will 
prohibit entry into or movement within certain portions of the Charles 
River in the vicinity of the FleetCenter/North Station, Boston Inner 
Harbor in the vicinity of Logan International Airport, and 50 yards 
surrounding designated VIP vessels in the COTP Boston, Massachusetts 
zone, during the specified closure periods within the July 24, 2004, to 
July 31, 2004, timeframe.

DATES: This rule is effective from 8 a.m. e.d.t. on July 24, 2004, 
through 10 p.m. e.d.t. on July 31, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket (CGD01-04-002) and are available for inspection or 
copying at Marine Safety Office Boston, 455 Commercial Street, Boston, 
MA 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:

Regulatory Information

    On May 21, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Democratic National Convention, 
Boston, MA'' in the Federal Register (69 FR 29246). We received one 
electronically submitted comment regarding the proposed rule. No public 
meeting was requested, and none was held.
    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 rule is needed to protect 
former presidents and their spouses, the Democratic nominee for 
president and vice president, their spouses, and particular U.S. 
Congressmen from potential acts of terrorism or subversive acts during 
the Democratic National Convention (DNC). Any delay encountered in this 
rule's effective date would be contrary to public interest and public 
safety.

Background and Purpose

    In light of terrorist attacks on New York City and Washington, DC 
on September 11, 2001, and the continuing concern for future terrorist 
and or subversive acts against the United States, especially at events 
where a large number of persons are likely to congregate, the Coast 
Guard is establishing temporary security zones in certain waters of the 
Charles River in the vicinity of the FleetCenter/North Station, certain 
waters of Boston Inner Harbor in the vicinity of Logan International 
Airport, and surrounding VIP designated vessels identified by the COTP 
Boston, Massachusetts during the DNC. The DNC has been designated a 
National Special Security Event (NSSE) and will occur between July 26, 
2004, and July 29, 2004, at the FleetCenter/North Station facilities, 
in Boston, Massachusetts. Security measures for this event, including 
security zones proposed herein, are necessary from July 24,2004 to July 
31, 2004, and are needed to safeguard maritime transportation 
infrastructure, the public, and designated protectees, and to safeguard 
designated VIP vessels carrying protectees, from potential acts of 
violence or terrorism during DNC activities. The planning for these 
security zones has been conducted in conjunction with, and as a result 
of requests from, the United States Secret Service (USSS), the lead 
federal agency for the DNC, and the Capitol Police. This rule will 
temporarily close sections of the Charles River in the vicinity of the 
FleetCenter/North Station, certain Boston Inner Harbor water areas 
along the perimeter of Logan International Airport, and surrounding 
designated VIP vessels identified by the COTP Boston, Massachusetts, to 
be in need of Coast Guard escort for security reasons while they are 
transiting the COTP Boston, Massachusetts zone, at specified times from 
July 24, 2004, to July 31, 2004.
    For purposes of this rulemaking, designated VIP vessels include any 
vessels designated by the Coast Guard COTP Boston, Massachusetts to be 
in need of Coast Guard escort in the COTP Boston, Massachusetts zone, 
based on a request from the USSS or the Capitol Police. Any VIP 
designated vessel may contain protectees. ``Protectees'' for the 
purposes of the USSS include the President of the United States and

[[Page 43909]]

former presidents and their spouses, the Democratic nominee for 
president, and the Democratic nominee for vice president and their 
spouses. ``Protectees'' for the purposes of the Capitol Police include 
particular U.S. Congressmen. One or more Coast Guard Cutters or small 
boats will escort designated VIP vessels deemed in need of escort 
protection.
    The Captain of the Port Boston, Massachusetts will notify the 
maritime community of the periods during which the security zones will 
be enforced. Broadcast notifications will be made to the maritime 
community advising them of the boundaries of the zones.
    No person or vessel may enter or remain in the prescribed security 
zones at any time without permission of the Captain of the Port. Each 
person or vessel in a security zone must obey any direction or order of 
the COTP, or the designated Coast Guard on-scene representative. 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 security zone described herein, is 
punishable by, among others, civil penalties (not to exceed $32,500 per 
violation, where each day of a continuing violation is a separate 
violation), criminal penalties (imprisonment for not more than 6 years 
and a fine for not more than $250,000 for an individual and $500,000 
for an organization), in rem liability against the offending vessel and 
license sanctions. This rule is established under the authority 
contained in 50 U.S.C. 191, and 33 U.S.C. 1226 and 1231.
    As part of the Diplomatic Security and Antiterrorism Act of 1986 
(Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways 
Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take 
actions, including the establishment of security zones, to prevent or 
respond to acts of terrorism against individuals, vessels, or public or 
commercial structures. Moreover, the Coast Guard has authority to 
establish security zones pursuant to the Act of June 15, 1917, as 
amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et 
seq.)(the ``Magnuson Act'') and implementing regulations promulgated by 
the President in subparts 6.01 and 6.04 of part 6 of title 33 of the 
Code of Federal Regulations.

Discussion of Comments and Changes

    One electronically filed comment was received regarding the 
proposed regulation. The content of the comment was three-fold. It 
recognized the need to establish restrictions during the DNC period 
based on the significance of the event and the current threat 
environment, and commended the proposed rule for appropriately 
balancing security needs with waterway use. It recommended further 
outreach efforts, and lastly suggested the rule could be improved by 
providing additional clarification to waterway users regarding 
application of the restrictions. The specific questions posed and 
responses follow:
    To address outreach, both the Coast Guard and the USSS have 
undergone extensive outreach efforts to ensure affected waterway users 
would be informed of DNC related waterway restrictions. Information on 
proposed restrictions was provided at Boston Port Operators Group 
meetings on February 18, March 17, and April 21, at two specific 
industry stakeholder meetings on March 30 and 31, and at a 
harbormasters and salvors meeting on May 27, 2004.
    Meetings were also held at the Watertown Yacht Club and the Jubilee 
Yacht Club, which included representatives from numerous clubs in the 
Boston and surrounding areas. Further, an informational brochure 
outlining the proposed security zones was distributed at these 
meetings, to other local boating and yacht clubs, to the Massachusetts 
Bay Yacht Association, and at local boat shows by the Coast Guard 
Auxiliary. The informational brochure is also posted on the Marine 
Safety Office Boston internet Web site found at http://uscg.mil/d1/units/msobos/.
    The Coast Guard and the USSS will continue notifications by 
distribution of the final rule (once published) to maritime 
stakeholders and by marine information broadcasts. Below are the seven 
specific questions posed in the comment:
    (1) How far in advance of transit during the week of the Convention 
must commercial, regular users of the security zone seek pre-approval 
of such transit?
    Pre-approval is defined as permission given prior to the start of 
DNC security operations by the Captain of the Port Boston to transit 
through a security zone. The process by which commercial entities could 
gain pre-approval to transit DNC security zones began in September of 
2003 when the USSS identified affected commercial operators and began 
negotiations regarding potential waterway restrictions. Shortly 
thereafter the Coast Guard Captain of the Port Boston joined in the 
outreach effort and assisted the USSS in further identification of 
affected commercial operators as the actual parameters of the proposed 
security zones took shape. Information on proposed restrictions and 
requests for affected commercial entities were provided at Boston Port 
Operators Group meetings on February 18, March 17, and April 21, at two 
specific industry stakeholder meetings on March 30 and 31, and a 
harbormasters and salvors meeting on May 27, 2004. At this point, the 
Coast Guard expects that any pre-approval requests should have already 
been submitted to the USSS or the Coast Guard. Once the security zones 
go into effect, only pre-approved transits and those requested due to 
emergency situations will be allowed. We have revised the text of 
paragraph (b)(2) or the regulation to clarify this point.
    (2) How extensive will the pre-transit sweep by law enforcement be?
    The pre-transit sweep will be as extensive as deemed necessary by 
law enforcement presence for the safety and security of the port during 
the Democratic National Convention.
    (3) What is a ``commercial vessel'' for purposes of the regulation?
    A commercial vessel is considered any vessel engaged in 
``commercial service''. Commercial service includes any type of trade 
or business involving the transportation of goods or individuals, 
except service performed by a combatant vessel as stated in 46 U.S.C. 
2101(5).
    (4) What pattern of use constitutes a ``regular route'' for 
purposes of the regulation?
    A ``regular route'' for the purposes of this regulation means 
transits that are based on a pre-set schedule which has been 
established ahead of time, and where such transits have been occurring 
in the specified areas as part of an ongoing business over the past 
several months or years.
    (5) What are the purposes of the pre-transit sweep?
    The purpose of the pre-transit sweep is to ensure the safety and 
security of the persons on board the vessel, law enforcement personnel, 
and for the safety and security of the port.
    (6) Upon what grounds, if any, could on-scene Coast Guard personnel 
refuse passage rights to commercial users whose route was pre-approved 
by the COTP?
    Any act, behavior, or situation deemed unsafe or a threat to 
security by on-scene law enforcement personnel who are authorized by 
the COTP to enforce the safety and security zones could result in 
refusal of passage.
    (7) Is there any appeal procedure for those who apply in advance to 
the

[[Page 43910]]

COTP for permission to pass through a security zone, but are denied 
clearance?
    Comments or correspondence may be directed to the office listed 
under ADDRESSES and will be reviewed. However, the COTP has final 
authority and the right to deny permission or revoke prior permission 
when deemed necessary for the safety and security of the public or the 
Boston COTP 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 Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be minimal 
enough that a full Regulatory Evaluation under the regulatory policies 
and procedures of the DHS is unnecessary.
    Although this proposed regulation will temporarily prevent traffic 
from transiting a portion of the Charles River, Boston Inner Harbor and 
surrounding certain VIP designated vessels during the specified 
effective periods, the effects of this regulation will be minimized 
based on several factors. Vessels that historically have conducted 
daily business in the area of the Charles River security zone will be 
allowed to transit, as long as transits have been prearranged as 
discussed, thereby preventing disruption to their normal business. The 
potential delays associated with vessels being swept and escorted 
through the zone will be minimal. The Logan Airport DNC security zone 
mirrors an existing state security zone, and therefore users of these 
waters will not encounter restrictions significantly different from 
those already in existence. The temporary security zones surrounding 
VIP designated vessels are included in this rule as a precautionary 
measure should they become necessary. At this time, no VIP designated 
vessel security zones are scheduled. If they are deemed necessary 
during the event and are subsequently enacted, these zones are limited 
in scope, enough so that vessels may transit safely outside of the 
zones and still make use of the waterway. Additionally, VIP designated 
vessels will be advised to operate in such a manner as to avoid 
restricting the main shipping channels from use by large commercial 
vessels that require the depth of water to operate safely. Lastly, 
advance notice to waterways users has been, and will continue to be, 
made via outreach meetings, informational brochures, safety marine 
information broadcasts, and local notice to mariners.

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 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 or anchor in these security zones 
during this event. However, this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
due to: transit accommodations that are being made for regular 
commercial operators within the Charles River and Logan Airport DNC 
zones; the minimal time that vessels will be restricted from the area 
of the zones; vessels being able to pass safely around the zones; 
vessels having to wait only a short time for the VIP designated vessels 
to pass if they cannot safely pass outside the zones; and the advance 
notifications which will be made to the local maritime community by 
marine information broadcasts.

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 the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. 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 Chief Petty Officer Daniel 
Dugery Waterways Safety and Response. Marine Safety Office Boston, 
(617) 223-3000.
    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 rule calls 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 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 will 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 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 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 may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order

[[Page 43911]]

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.

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. 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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
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 final ``Environmental Analysis Check List'' and a 
final ``Categorical Exclusion Determination'' are available in the 
docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Safety measures, Waterways.

0
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

0
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, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-002 to read as follows:


Sec.  165.T01-002  Security Zones; Democratic National Convention, 
Boston, MA.

    (a) Location. The following areas are security zones:
    (1) All navigable waters of the Charles River from the westernmost 
portion of the Monsignor O'Brien Highway Bridge/Museum of Science 
structure as the western boundary, to a line drawn across the Charles 
River, 50 yards east and parallel to, the Charlestown Bridge, as the 
eastern boundary.
    (2) All waters between the mean high water line around the 
perimeter of Logan International Airport and a line measured 250 feet 
seaward of and parallel to the mean high water line.
    (3) All navigable waters 50 yards around any designated Very 
Important Person vessel carrying specified protectees during Democratic 
National Convention activities, in the Captain of the Port Boston, 
Massachusetts zone.
    (b) Regulations. (1) Entry into or remaining in these zones is 
prohibited unless authorized by the Coast Guard Captain of the Port, 
Boston.
    (2) Persons desiring to transit the area of the security zones may, 
prior to the event, contact the Captain of the Port at telephone number 
617-223-3000/5750 to request pre-approval. Persons with pre-approval 
from the Captain of the Port should communicate with and verify on-
scene approval from the authorized on-scene patrol representative on 
VHF channel 16 (156.8 MHz). If permission is granted, all persons and 
vessels must comply with the instructions of the Captain of the Port or 
his or her designated representative.
    (3) All persons and vessels must comply with the instructions of 
the Captain of the Port or the designated on-scene Coast Guard patrol 
personnel. On-scene Coast Guard patrol personnel include commissioned, 
warrant and petty officers of the Coast Guard on board Coast Guard 
Auxiliary, and local, state and federal law enforcement vessels.
    (4) The Captain of the Port or his or her designated representative 
will notify the maritime community of periods during which these zones 
will be enforced. The Captain of the Port or his or her designated 
representative will identify designated Very Important Person vessel 
transits by way of marine information broadcast. Emergency response 
vessels are authorized to move within the zone, but must abide by 
restrictions imposed by the Captain of the Port or his or her 
designated representative.
    (c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Enforcement period. This section will be enforced from:
    (1) 12:01 a.m. e.d.t., on July 26, 2004, until 2 a.m. e.d.t., on 
July 30, 2004, with respect to the Charles River Zone described in 
paragraph (a)(1).
    (2) 8 a.m. e.d.t., on July 24, 2004, until 10 p.m. e.d.t., on July 
31, 2004, with respect to the Logan Airport Democratic National 
Convention Zone described in paragraph (a)(2).
    (3) 8 a.m. e.d.t., on July 24, 2004, until 10 p.m. e.d.t., on July 
31, 2004, with respect to the moving security zones described in 
paragraph (a)(3) around designated Very Important Person vessels 
carrying specified protectees, as deemed necessary by the United States 
Secret Service or U.S. Capitol Police, 15 minutes prior to and while 
they are onboard the vessel.

    Dated: July 15, 2004.
Brian M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 04-16829 Filed 7-20-04; 2:56 pm]
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