02-17380. 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 [phone].

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 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° 31.33′ N, 070° 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 [phone]. 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 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 § 165.116 to read as follows:

§ 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°31.33′ N, 070°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 § 165.23 and § 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.