[Federal Register Volume 81, Number 40 (Tuesday, March 1, 2016)]
[Rules and Regulations]
[Pages 10499-10501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04429]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2014-0246]
RIN 1625-AA87


Security Zone, John Joseph Moakley United States Courthouse; 
Boston, MA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent security zone 
within Sector Boston's Captain of the Port (COTP) Zone on the waters in 
the vicinity of John Joseph Moakley United States Courthouse, Boston, 
MA. This security zone will expedite public notification of high 
profile court proceedings at the Moakley Courthouse and is necessary to 
protect people, property, and the Port of Boston from subversive acts.

DATES: This rule is effective March 31, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2014-0246 in the ``SEARCH'' box and click ``SEARCH''. Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Mark Cutter, Coast Guard Sector Boston Waterways 
Management Division, telephone (617)223-4000, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section
TFR Temporary Final Rule
U.S.C. United States Code
USCG United States Coast Guard

II. Background Information and Regulatory History

    On Thursday November 20, 2014, the Coast Guard published a NPRM in 
the Federal Register (79 FR 69078). There we stated why we issued the 
NPRM, and invited comments on our proposed regulatory action related to 
this security zone. No Public meetings were requested or held. Thirty 
formal written comments were received.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department 
of Homeland Security Delegation No. 0170.1 which collectively 
authorizes the Coast Guard to establish security zones.
    The John Joseph Moakley United States Courthouse houses the United 
States Court of Appeals for the First Circuit, the United States 
District Court for the District of Massachusetts, and the United States 
Attorney's Office for the District of Massachusetts. Consequently, high 
profile events and court proceedings take place at the Moakley 
Courthouse, resulting in a heightened security posture. With this in 
mind, the Captain of the Port, Sector Boston, has determined that a 
security zone is necessary to better protect and secure persons and 
property during high profile court proceedings and events.
    Establishing a security zone on an ad hoc basis is administratively 
cumbersome and reduces the opportunity for public participation in the 
development of the rule. Thus, to lessen administrative overhead and to 
maximize public participation, this rule establishes a security zone 
near the courthouse that will remain in effect permanently but will be 
enforced only when deemed necessary by the COTP. The COTP will notify 
the public of the enforcement of this security zone by publishing a 
Notice of Enforcement (NOE) in the Federal Register and via the other 
means listed in 33 CFR 165.7. This permanent security zone will be 
published in 33 CFR 165.120.

IV. Discussion of Comments, Changes, and the Rule

    We received ten comments on the NPRM to establish a permanent 
security zone within Sector Boston's COTP Zone. The NPRM proposed a 
five hundred (500) yard security zone that allowed vessels to enter the 
security zone, without permission, as long as such vessels proceeded 
through the area with caution and operated at a speed no faster than 
that speed necessary to maintain a safe course, unless otherwise 
required by the Navigation Rules, as published in 33 CFR part 83 and 
remain beyond two hundred and fifty (250) yards of the Moakley 
Courthouse. Further, vessels could enter within two hundred and fifty 
(250) yards with permission of the COTP or the COTP's representative. 
The comments we received were primarily from owners, operators, and 
employees of commercial passenger vessels, including the daily commuter 
ferry vessels that transfer passengers at the Rowes Wharf Ferry 
Terminal. Other comments received were from the property management 
company of Rowes Wharf and a non-profit, public interest organization 
that promotes a clean, alive, and accessible Boston Harbor.
    While none of the comments expressed concern with the proposed 
speed restrictions, there were significant concerns with the two 
hundred and fifty (250) yard security zone, in that vessels could not 
enter without permission of the COTP. This area entails the entrance 
into Fort Point Channel and Rowes Wharf. Rowes Wharf is the number one 
passenger transfer marine ferry terminal in Boston Harbor. In each of 
the comments, the consensus was that a two hundred and fifty (250) yard 
enforced security zone could potentially disrupt the water 
transportation system of Boston Harbor, which would have serious 
economic impacts upon commercial operators.
    In January 15, 2015, without adequate time to address the comments 
regarding the impact of the two hundred and fifty (250) yard security 
zone, the Coast Guard published a temporary final rule (TFR), entitled 
``Security Zone, John Joseph Moakley United States Courthouse; Boston, 
MA'' (see 80 FR 2013) in preparation for the trial of the Boston 
Marathon bomber, Dzhokhar Tsarnaev, which reduced the restricted area 
to one hundred (100) yards. Publishing a new NPRM to reflect this 
change and delaying the effective date would have been impracticable 
and contrary to the public interest since it would have inhibited the 
Coast Guard's ability to fulfill its statutory missions to protect 
people, property, and the Port of Boston from subversive acts during 
this high profile court proceeding. Accordingly, under 5 U.S.C. 
553(d)(3), the Coast Guard found that good cause existed for publishing 
a TFR with an

[[Page 10500]]

effective date within 30 days of publication in the Federal Register.
    The TFR established a five hundred (500) yard security zone that 
allowed vessels to enter the security zone, without permission, as long 
as such vessels proceeded through the area with caution and operated at 
a speed no faster than that speed necessary to maintain a safe course, 
unless otherwise required by the Navigation Rules, and remain beyond 
one hundred (100) yards of the Moakley Courthouse. Further, vessels 
could enter within one hundred (100) yards with permission of the COTP 
or the COTP's representative.
    The Boston Marathon Trial lasted approximately six months. During 
this period while the TFR was being enforced, the Coast Guard received 
no negative comments. During multiple port partner meetings throughout 
that period, multiple entities who commented on the original NPRM, 
noted that the one hundred (100) yard security zone was not an issue, 
as it was having no impact on their business.
    The COTP has decided, based on the input from the law enforcement 
personnel that enforced the security zone established by the TFR, and 
the formal comments made in response to the NPRM, to issue a final rule 
on the NPRM that would use a one hundred (100) yard security zone as 
used in the TFR vice a two hundred and fifty (250) yard security zone 
as proposed in the original NPRM. This modification to the NPRM would 
be both adequate to address the concerns articulated by the public and 
sufficient to protect and secure persons and property during high 
profile court proceedings and events at the John Joseph Moakley United 
States Courthouse, Boston, MA.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive Orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on these statutes and (E.O.s) and we discuss First 
Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    The Coast Guard expects the economic impact of this rule to be so 
minimal that a full regulatory evaluation under the regulatory policies 
and procedures of DHS is unnecessary. First, based on the comments and 
feedback from the NPRM on the permanent security zone and the TFR on 
the temporary security zone, we feel that decreasing the two hundred 
and fifty (250) yards to one hundred (100) yards will minimize the 
impact to vessels, such as commuter ferries servicing Rowes Wharf, 
because they will be able to transit their normal routes. Second, the 
Courthouse is likely to shut down the harbor dock to water Taxis during 
trials. Third, mariners may still pass through the security zone, 
within one hundred (100) yards of the Moakley Courthouse, with 
authorization from the COTP or a designated on-scene representative. 
Finally, such notification of this security zone will be published by 
Notice of Enforcement (NOE) in the Federal Register, through the local 
Notice to Mariners, Broadcast Notice to Mariners, and through extensive 
public outreach.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 persons.
    The Coast Guard received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners and operators of vessels intending to transit the 
security zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have significant economic impact on any 
vessel owner or operator.
    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 rule. If the rule will affect your small 
business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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. If you believe this rule has 
implications for federalism or Indian tribes, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. 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

[[Page 10501]]

more in any one year. Though this rule will not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

F. Environment

    We have analyzed this 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 (42 U.S.C. 4321-4370f), and have determined that 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
final rule involves the establishment of a permanent security zone. 
This rule is categorically excluded from further review under, 
paragraph 34(g) of figure 2-1 of the Commandant Instruction. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places, or vessels.

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

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, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.120 to read as follows:


Sec.  165.120  Security Zone, John Joseph Moakley United States 
Courthouse, Boston, MA.

    (a) Location. This security zone encompasses all U.S. navigable 
waters, from surface to bottom, within five hundred (500) yards of the 
John Joseph Moakley United States Courthouse (Moakley Courthouse) in 
Boston, MA, and following any natural waterside seawall configuration.
    (b) Regulations. While this security zone is being enforced, the 
following regulations, along with those contained in 33 CFR 165.33, 
apply:
    (1) No person or vessel may enter or remain in this security zone 
without the permission of the Captain of the Port (COTP), Sector 
Boston. However, the COTP hereby grants vessels permission to enter 
this security zone as long as such vessels proceed through the area 
with caution and operate at a speed no faster than that speed necessary 
to maintain a safe course, unless otherwise required by the Navigation 
Rules as published in 33 CFR part 83 and remain beyond one hundred 
(100) yards of the Moakley Courthouse in Boston, MA, following any 
natural waterside seawall configuration enclosed by a line connecting 
the following points:

----------------------------------------------------------------------------------------------------------------
                  Latitude                                                 Longitude
----------------------------------------------------------------------------------------------------------------
42[deg]21'15'' N............................  71[deg]02'54'' W.; Bounded by the curvature of the seawall, thence
                                               to
42[deg]21'18'' N............................  71[deg]02'43'' W.; thence to
42[deg]21'20'' N............................  71[deg]02'40'' W.; Bounded by 100 yards off the curvature of the
                                               seawall, thence to
42[deg]21'16'' N............................  71[deg]02'57'' W.; thence to point of origin.
----------------------------------------------------------------------------------------------------------------

    (2) Although vessels have permission to enter the five hundred 
(500) yards security zone under the conditions mentioned in the 
preceding paragraph, no person or vessel may come within one hundred 
(100) yards of the Moakley Courthouse under any conditions unless given 
express permission from the COTP or the COTP's designated 
representatives.
    (3) Any person or vessel permitted to enter the security zone shall 
comply with the directions and orders of the COTP or the COTP's 
representatives. Upon being hailed by siren, radio, flashing lights, or 
other means, the operator of a vessel within the zone shall proceed as 
directed. Any person or vessel within the security zone shall exit the 
zone when directed by the COTP or the COTP's representatives.
    (4) To obtain permissions required by this regulation, individuals 
may reach the COTP or a COTP representative via VHF channel 16 or 617-
223-5757 (Sector Boston Command Center) to obtain permission.
    (5) Penalties. Those who violate this section are subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    (c) Effective and enforcement period. This security zone is in 
effect permanently but will only be enforced when deemed necessary by 
the COTP. Anyone, including members of federal, state or local law 
enforcement agencies, may request that this security zone be enforced.
    (d) Notification. The COTP will notify the public of the 
enforcement of this security zone by publishing a Notice of Enforcement 
(NOE) in the Federal Register and via the other means listed in 33 CFR 
165.7. Such notifications will include the date and times of 
enforcement, along with any pre-determined conditions of entry.
    (e) COTP representative. The COTP's representative may be any Coast 
Guard commissioned, warrant, or petty officer or any Federal, state, or 
local law enforcement officer who has been designated by the COTP to 
act on the COTP's behalf. The COTP's representative may be on a Coast 
Guard vessel, a Coast Guard Auxiliary vessel, federal, state or local 
law enforcement or safety vessel, or a location on shore.

    Dated: February 17, 2016.
C.C. Gelzer,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. 2016-04429 Filed 2-29-16; 8:45 am]
BILLING CODE 9110-04-P