[Federal Register: July 11, 2002 (Volume 67, Number 133)]
[Rules and Regulations]               
[Page 45907-45909]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy02-11]                         

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-016]
RIN 2115-AA97

 
Safety and Security Zone; Boston and Salem Harbors, MA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing permanent safety and security 
zones around PG & E Power Plant Terminal Wharf, Salem, MA, Black Falcon 
Terminal, Boston, MA and Coast Guard Integrated Support Command (ISC), 
Boston, MA. The safety and security zones will close certain waters 
around these facilities in Boston and Salem Harbors. The safety and 
security zones 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.

DATES: Effective July 1, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Marine Safety Office Boston, 455 Commercial 
Street, Boston, MA between the hours of 8 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Dave Sherry, Marine Safety Office 
Boston, Maritime Security Operations Division, at (617) 223-3067.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On February 27, 2002 we published a notice of proposed rulemaking 
(NPRM) in the Federal Register (67 FR 8915), proposing to establish 
three permanent safety and security zones, and to make previously 
established safety and security zones around the Distrigas Liquefied 
Natural Gas Facility in Everett, MA effective for an additional period. 
That NPRM provided for a short comment period, which would have allowed 
the zones to become effective on March 16, 2002. This short comment 
period was intended to prevent any lapse in protective measures 
provided by the temporary rule, which originally established the zones 
around Black Falcon Terminal, PG & E Power Plant Terminal Wharf, Salem, 
MA, and Coast Guard Integrated Support Command (ISC) Boston, MA. The 
comment period for that proposed rule did not allow adequate time for 
public comment. In order to provide adequate time for notice and 
comment the temporary rule was therefore extended on March 15, 2002, 
making it effective until June 30, 2002.
    Subsequently, a supplemental notice of proposed rulemaking (SNPRM), 
which addressed comments received on the previous NPRM and proposed 
safety and security zones in the same three areas but amended in size, 
was published in the Federal Register (67 FR 20937) on April 29, 2002. 
The comment period for that SNPRM expired on May 29, 2002. The Coast 
Guard is now proceeding to implement a final rule taking into account 
all comments received.
    Good cause exists for making this rule effective less than 30 days 
after Federal Register publication. Delay in the effective date of this 
regulation would be contrary to public interest. The Black Falcon 
Terminal, the PG & E Power Plant Terminal Wharf Salem, MA, and Coast 
Guard ISC Boston, MA present possible targets of terrorist attack, due 
to their stature as strategic and critical infrastructure, as well as 
their potential for large personnel casualties if struck by a terrorist 
incident. A July 1, 2002 effective date for this regulation is 
necessary to prevent the lapse in the effective date of the temporary 
regulations above, which would leave persons at these facilities, and 
the public and surrounding communities vulnerable to sabotage or other 
subversive acts, accidents, or other events of a similar nature.

Background and Purpose

    In light of terrorist attacks on New York City and Washington DC on 
September 11, 2001 three pairs of safety and security zones, each pair 
of safety and security zones having identical parameters, are being 
established to safeguard the Black Falcon Terminal, the PG & E Power 
Plant Terminal Wharf Salem, MA, and Coast Guard ISC Boston, MA, persons 
at these facilities, and the public and surrounding communities from 
sabotage or other subversive acts, accidents, or other events of a 
similar nature. These facilities present possible targets of terrorist 
attack, due to their stature as strategic and critical infrastructure, 
as well as their potential for large personnel casualties if subject to 
a terrorist attack. These permanent safety and security zones prohibit 
entry into or movement within three specified areas.
    The first area encompasses 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 second area encompasses all 
waters of

[[Page 45908]]

Boston Harbor within 100 feet of the Coast Guard Integrated Support 
Command (ISC) Boston piers. The third area encompasses all waters of 
Salem Harbor within a 250-yard radius of the center point of the PG & E 
Power Plant Terminal Wharf located at 42 deg. 31.33' N, 070 deg. 52.67' 
W when a vessel is moored there.
    No person or vessel may enter or remain in the prescribed safety 
and security zones at any time without the permission of the Captain of 
the Port. Each person or vessel in a safety and security zone shall 
obey any direction or order of the Captain of the Port or designated 
Coast Guard representative on-scene. The Captain of the Port 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 
Captain of the Port. These regulations are issued under authority 
contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.
    Any violation of any 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 $100,000), in rem liability against the 
offending vessel, and license sanctions.

Discussion of Comments and Changes to the Proposed Rule

    The Coast Guard received 4 comments from the public regarding this 
proposal. All comments received were considered in the development of 
this final rule. Comments were received from maritime industry 
stakeholders. In light of the comments received and evaluations 
conducted, we feel changes to the zones' parameters as outlined in the 
SNPRM were unnecessary. The comments and reasoning for not making 
changes to the SNPRM are addressed below.
    Comment: These zones will cause economic impacts upon local 
fishermen and close fishing grounds in Boston and Salem Harbors.
    Response: All 4 comments received were from commercial lobstermen, 
stating they had concerns this proposal would close traditional fishing 
grounds in Boston and Salem Harbors and cause negative impacts on their 
business. As defined in the SNPRM and here, the Coast Guard feels these 
safety and security zones will not significantly impact commercial 
fishing in Boston and Salem Harbor. The zone around the U.S. Coast 
Guard ISC in Boston, MA extends only 100 feet from the pier. The zones 
around the Salem Terminal Wharf and Black Falcon Terminal are only in 
effect when vessels are located at the facilities. Vessel visits to 
Salem Terminal Wharf are infrequent, an average of three vessel visits 
per month. Vessel visits to Black Falcon typically last 12 to 24 hours, 
occur once or twice a week, and are seasonal between April and 
November. These zones were greatly reduced in size when proposed in the 
SNPRM from their original sizes as listed in 66 FR 49280, under which 
they were originally published after the events of September 11, 2002. 
Considering the minimal times that the Salem Terminal Wharf and Black 
Falcon Terminal zones will be in effect, and the minimal areas they 
encompass, the impacts of this regulation will be minimal on local 
fishermen and the rest of the maritime community. The necessity of 
protecting these entities outweighs the temporary negligible impacts 
they impose on fishermen.

Regulatory Evaluation

    This 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 Transportation 
(DOT)(44 FR 11040, February 26, 1979).
    The Coast Guard expects the economic impact of this rule to be 
minimal enough that a full regulatory evaluation under paragraph 10e of 
the regulatory policies and procedures of DOT is unnecessary. This rule 
will impose zero mandatory costs. The effect of this rule will not be 
significant for several reasons: there is ample room for vessels to 
navigate around the zones in Boston and Salem Harbors, the Salem 
Terminal Wharf and Black Falcon Terminal zones will only be in effect 
when vessels are moored at the respective piers, and notifications of 
the enactment of the Salem Terminal Wharf and Black Falcon Terminal 
zones will be made to the local maritime community through Local Notice 
to Mariners and have already been made through a public outreach 
campaign.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard 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 rule 
will 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, anchor, or conduct commercial fishing operations 
in 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 will 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 (Public Law 104-121), the Coast Guard 
wants to assist small entities in understanding this 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 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 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 rule under Executive Order 13132, 
Federalism, and has determined that

[[Page 45909]]

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 rule would not impose an unfunded mandate.

Taking of Private Property

    This 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 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 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 
pose 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 
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 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 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 amends 
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. 165.116 to read as follows:


Sec. 165.116  Safety and Security Zones; Salem and Boston Harbors, 
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 and;
    (3) Salem Harbor. All waters of Salem Harbor within a two-hundred 
and fifty (250) yard radius of the center point of the PG & E Power 
Plant Terminal Wharf, Salem, MA, located at 42 deg.31.33' N, 
070 deg.52.67' W when a vessel is moored at this pier. All coordinates 
are North American Datum 1983.
    (b) Effective date. This section becomes effective July 1, 2002.
    (c) 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 
Captain of the Port 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: June 27, 2002.
B.M. Salerno,
Captain, Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 02-17380 Filed 7-10-02; 8:45 am]
BILLING CODE 4910-15-P