[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Proposed Rules]
[Pages 16370-16374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7161]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 150 and 165

[Docket No. USCG-2009-0589]
RIN 1625-AA00, RIN 1625-AA11


Regulated Navigation Areas, Safety Zones, Security Zones; 
Deepwater Ports in Boston Captain of the Port Zone, MA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish new regulated navigation 
areas (RNAs) and safety and security zones for deepwater liquefied 
natural gas (LNG) ports in the Boston Captain of the Port (COTP) Zone, 
off the coast of Gloucester, Massachusetts. The proposed RNAs and 
safety and security zones are in waters around the Neptune Deepwater 
Port Facility (Neptune). They would protect vessels and mariners from 
the potential safety hazards associated with deepwater port operations, 
and protect liquefied natural gas carriers (LNGCs) and deepwater port 
infrastructure from security threats or other subversive acts, by 
prohibiting certain operations and imposing conditions on others.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 1, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0589 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail LCDR Pamela Garcia, Coast Guard; telephone 617-
223-3028; e-mail [email protected]. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0589), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can

[[Page 16371]]

contact you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Proposed Rule'' and insert ``USC-2009-0589'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit comments by mail and 
would like to know that they reached the Facility, please enclose a 
stamped, self-addressed postcard or envelope. We will consider all 
comments and material received during the comment period and may change 
the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USC-2009-0589'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    On March 23, 2007, the Maritime Administration (MARAD), in 
accordance with the Deepwater Port Act of 1974 (DPA), as amended, 33 
U.S.C. 1501 et seq., issued a license to Suez Energy to own, construct, 
and operate a natural gas deepwater port. This port, Neptune Deepwater 
Port (Neptune), is located in the Atlantic Ocean, approximately eight 
nautical miles south-southeast of Gloucester, Massachusetts, in Federal 
waters. The coordinates for its two submerged turret loading buoys are: 
STL Buoy A, Latitude 42[deg]29'12.3'' N, Longitude 070[deg]36'29.7'' W 
and STL Buoy B, Latitude 42[deg]27'20.5'' N, Longitude 
070[deg]36'07.3'' W. Neptune can accommodate the mooring, connecting, 
and offloading of two liquefied natural gas carriers at one time. 
Neptune's operator plans to offload LNGCs by regasifying the liquefied 
natural gas (LNG) on board the vessels. The regasified natural gas is 
then transferred through two submerged turret loading buoys via a 
flexible riser leading to a seabed pipeline that ties into the 
Algonquin Gas Transmission Pipeline for transfer to shore.
    Among other powers, Coast Guard District Commanders may establish, 
in 33 CFR Part 165:
     Regulated navigation areas--Defined water areas determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety;
     Safety zones--Water or shore areas to which access may be 
limited for safety or environmental purposes; and
     Security zones--Land or water areas subject to regulation 
to safeguard vessels, harbors, ports, or waterfront facilities from 
destruction, loss, or injury from sabotage or similar subversive acts.

33 U.S.C. 1226, 1231; 50 U.S.C. 191; Department of Homeland Security 
Delegation No. 0170.1; 33 CFR 1.05-1, 165.10, 165.11, 165.20, 165.30. 
Current regulations establishing RNAs, safety zones, and security zones 
for deepwater ports in the Boston COTP Zone appear at 33 CFR 165.110 
and 165.117.
    In the case of deepwater ports handling oil or natural gas, RNAs 
and safety or security zones established by the District Commander may 
also affect 33 CFR 150.940, which describes safety zones for specific 
deepwater ports. Insofar as deepwater port safety zones involve 
anchorage, they are established under the additional authority of the 
DPA, 33 U.S.C. 1509(a). If a deepwater port safety zone also provides 
for ``no anchoring areas'' (NAAs) or ``areas to be avoided'' (ATBAs), 
the District Commander must coordinate its establishment in accordance 
with 33 CFR 150.915, because NAAs and ATBAs require International 
Maritime Organization (IMO) approval. Current regulations establishing 
safety zones for the Boston COTP Zone appear at 33 CFR 150.940(c).

Discussion of Proposed Rule

    The Coast Guard proposes establishing RNAs around Neptune's STL 
buoys, to protect mariners from the hazards associated with submerged 
deepwater port infrastructure and to ensure safety at and around LNGCs 
engaged in regasification and transfer operations at Neptune. The RNAs 
would prohibit vessels from anchoring or otherwise deploying equipment 
that could become entangled in submerged infrastructure within 1,000 
meters of Neptune's STL buoys. The RNAs would also prohibit vessels 
from commercial fishing or other activities on or below the waterway 
using nets, dredges, traps, or remotely operated vehicles (ROVs). 
Diving in the RNAs would be prohibited without the permission of the 
COTP, and this prohibition would be extended to existing RNAs for the 
Northeast Gateway Deepwater Port (NEGDWP).
    The Coast Guard also proposes placing safety and security zones 
within the corresponding RNAs. These would prohibit any person or 
vessel, other than an LNGC or support vessel (as defined in 33 CFR 
148.5), from coming within 500 meters of Neptune's STL buoys. Because 
these safety zones affect anchorage at a deepwater port, the Coast 
Guard also proposes adding Neptune's safety zones to 33 CFR 150.940. 
The proposed amendment to that section would also provide details of 
IMO-approved NAAs and an ATBA affecting Neptune, which would be 
reflected on nautical charts. An IMO subcommittee gave preliminary 
approval to Neptune's NAAs and ATBA in July 2009, and we will not issue 
a final rule recognizing those NAAs and the ATBA until the IMO gives 
them final approval.
    Finally, the Coast Guard proposes two amendments to 33 CFR 
150.940(c)(4)(iii), which relates to safety zones for the Northeast 
Gateway Deepwater Port. These amendments would align the regulations 
for NEGDWP with those proposed for Neptune. The first would prohibit 
diving in NEGDWP's safety zones, without the permission of the COTP. 
The second would allow vessels to contact the COTP on VHF-FM Channel 16 
(156.8 MHZ) as well as by telephone.

[[Page 16372]]

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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.
    The USCG and MARAD are responsible for processing license 
applications to own, construct, and operate deepwater ports. To meet 
the requirements of the National Environmental Policy Act of 1969 
(NEPA), the Coast Guard, in cooperation with MARAD, prepared an 
Environmental Impact Statement (EIS) in conjunction with reviewing the 
Neptune licensing application. Among other things, the EIS assessed the 
potential economic impacts associated with the construction and 
operation of Neptune and determined this rule is not a significant 
regulatory action, including the no anchoring and limited access areas 
that would be implemented by this proposed rule. That EIS is available 
in the public docket for the licensing application (USCG-2005-22611) at 
http://www.regulations.gov.

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.
    This rule will affect the following entities, some of which may be 
small entities: the owners or operators of vessels intending to 
transit, fish, or conduct other operations within 1,000 meters of the 
STL buoys for Neptune. The impact on small entities is expected to be 
minimal because vessels wishing to transit the Atlantic Ocean in the 
vicinity of the deepwater port may do so, provided they remain more 
than 500 meters from Neptune's STL buoys and any LNGC vessels calling 
on the deepwater port; and provided they refrain from anchoring or 
deploying nets, dredges, or traps within 1,000 meters of the STL buoys. 
Vessels wishing to fish in the area may do so in nearby and adjoining 
areas when otherwise permitted by applicable fisheries regulations, and 
vessels wishing to conduct diving operations may do so with the 
permission of the COTP.
    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 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact LCDR Pamela Garcia at 617-223-
3028, e-mail: [email protected]. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

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 (adjusted for 
inflation) 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.

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.

[[Page 16373]]

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves the creation of new RNAs and safety and security zones, 
which falls within the categorical exclusion provisions of Paragraph 
34(g) of the Commandant Instruction. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

List of Subjects

33 CFR Part 150

    Harbors, Marine safety, Navigation (water), Occupational safety and 
health, Oil pollution, and Reporting and recordkeeping requirements.

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 Parts 150 and 165 as follows:

PART 150--DEEPWATER PORTS: OPERATIONS

    1. The authority citation for Part 150 continues to read as 
follows:

    Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5), (j)(6), 
(m)(2); 33 U.S.C. 1509(a); E.O. 12777, sec. 2; E.O. 13286, sec. 34, 
68 FR 10619; Department of Homeland Security Delegation No. 
0170.1(70), (73), (75), (80).

    2. Amend Sec.  150.940 by revising paragraph (c)(4)(iii) and adding 
paragraph (d) to read as follows:


Sec.  150.940  Safety zones for specific deepwater ports.

* * * * *
    (c) * * *
    (4) * * *
    (iii) All other vessel operators desiring to enter, operate or 
conduct diving operations within a safety zone described in paragraph 
(c)(1) of this section must contact the COTP or the COTP's authorized 
representative to obtain permission by contacting the Sector Boston 
Command Center at 617-223-5761 or via VHF-FM Channel 16 (156.8 MHZ). 
Vessel operators given permission to enter, operate, or conduct diving 
operations in a safety zone must comply with all directions given to 
them by the COTP or the COTP's authorized representative.
* * * * *
    (d) Neptune Deepwater Port (Neptune)
    (1) Location. The safety zones for Neptune consist of circular 
zones, each with a 500-meter radius and centered on each of Neptune's 
two submerged turret loading (STL) buoys. STL Buoy ``A'' is centered at 
the following coordinates: Latitude 42[deg]29'12.3'' N, Longitude 
070[deg]36'29.7'' W; and STL Buoy ``B'': Latitude 42[deg]27'20.5'' N, 
Longitude 070[deg]36'07.3'' W. Each safety zone encompasses, within the 
respective 500-meter circles, the primary components of Neptune, 
including a submerged turret loading buoy and a pipeline end manifold. 
Each safety zone is located approximately eight nautical miles south-
southeast of Gloucester, Massachusetts, in Federal waters.
    (2) No anchoring areas. Two mandatory no anchoring areas for 
Neptune are established for all waters within circles of 1,000-meter 
radii centered on the submerged turret loading buoy positions set forth 
in paragraph (d)(1) of this section.
    (3) Area to be avoided. An area to be avoided (ATBA) for Neptune is 
as described in Table 150.940(C):

                   Table 150.940(C)--ATBA for Neptune
------------------------------------------------------------------------
        Plotting guidance             Latitude N          Longitude W
------------------------------------------------------------------------
(i) Starting at.................  42[deg]27'29''      070[deg]35'07''
(ii) A rhumb line to............  42[deg]29'21''      070[deg]35'36''
(iii) Then an arc with a 1,250    42[deg]29'12''      070[deg]36'30''
 meter radius centered at point.
(iv) To a point.................  42[deg]29'06''      070[deg]37'24''
(v) Then a rhumb line to........  42[deg]27'13''      070[deg]36'54''
(vi) Then an arc with a 1,250     42[deg]27'20''      070[deg]36'07''
 meter radius centered at point.
(vii) To the point of starting..  42[deg]27'29''      070[deg]35'07''
------------------------------------------------------------------------

     (4) Regulations. (i) In accordance with the general regulations 
set forth in 33 CFR 165.23 and elsewhere in this part, no person or 
vessel may enter the waters within the boundaries of the safety zones 
described in paragraph (d)(1) of this section unless previously 
authorized by the Captain of the Port (COTP) Boston, or the COTP's 
authorized representative.
    (ii) Notwithstanding paragraph (d)(4)(i) of this section, liquefied 
natural gas carriers (LNGCs) and support vessels, as defined in 33 CFR 
148.5, calling on Neptune, are authorized to enter and move within such 
zones in the normal course of their operations following the 
requirements set forth in 33 CFR 150.340 and 150.345, respectively.
    (iii) All other vessel operators desiring to enter, operate or 
conduct diving operations within a safety zone described in paragraph 
(d)(1) of this section must contact the COTP or the COTP's authorized 
representative to

[[Page 16374]]

obtain permission by contacting the Sector Boston Command Center at 
617-223-5761 or via VHF-FM Channel 16 (156.8 MHZ). Vessel operators 
given permission to enter or operate in a safety zone must comply with 
all directions given to them by the COTP or the COTP's authorized 
representative.
    (iv) No vessel, other than an LNGC or support vessel calling on 
Neptune, may anchor in the area described in paragraph (d)(2) of this 
section.

PART 165--WATERWAYS SAFETY; REGULATED NAVIGATION AREAS AND LIMITED 
ACCESS AREAS

    3. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    3. Amend Sec.  165.117 by adding paragraph (a)(3)(ii) and revising 
paragraph (d)(1) to read as follows:


Sec.  165.117  Regulated Navigation Areas, Safety, and Security Zones: 
Deepwater Ports, First Coast Guard District.

    (a) * * *
    (3) * * *
    (ii) The geographic coordinates forming the loci for the regulated 
navigation areas, safety, and security zones for Neptune Deepwater Port 
are: 42[deg]29'12.3'' N, 070[deg]36'29.7'' W; and 42[deg]27'20.5'' N, 
070[deg]36'07.3'' W.
* * * * *
    (d) * * *
    (1) No vessel may anchor, engage in diving operations, or 
commercial fishing using nets, dredges, traps (pots), or remotely 
operated vehicles in the regulated navigation areas set forth in 
paragraph (a)(1) of this section.
* * * * *

    Dated: March 14, 2010.
Joseph L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2010-7161 Filed 3-31-10; 8:45 am]
BILLING CODE 9110-04-P