02-10407. Safety and Security Zones; High Interest Vessels-Boston Harbor, Weymouth Fore River, and Salem Harbor, MA

AGENCY:

Coast Guard, DOT.

ACTION:

Interim rule with request from comments.

SUMMARY:

The Coast Guard is establishing interim safety and security zones for vessels determined to be in need of a Coast Guard escort by the Captain of the Port (COTP), Boston. The safety and security zones for these escorted vessels will close all waters of Boston Harbor 1000 yards ahead and astern, and 100 yards on each side of an escorted vessel in transit. These safety and security zones are needed to safeguard the vessels, the public, and the surrounding area from sabotage or other subversive acts, accidents, or other events of a similar nature. The zones will prohibit entry into or movement within this portion of the COTP Boston zone without COTP authorization.

DATES:

This interim rule becomes effective May 29, 2002. Comments and related materials regarding this interim rule must reach the Coast Guard by June 28, 2002.

ADDRESSES:

Documents as indicated in this preamble are part of docket CGD01-01-227 and 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:

Lieutenant Dave Sherry, Marine Safety Office Boston, Maritime Security Operations Division, at [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-01-227), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know your comments reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this interim rule in view of them.

Public Meeting

We do not now plan to hold a public meeting. However, you may submit a request for a meeting by writing to Marine Safety Office Boston at the address under ADDRESSES explaining why one would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register.

Regulatory History

A notice of proposed rulemaking (NPRM) was published on January 18, 2002 in the Federal Register (67 FR 2614). The comment period in that NPRM expired February 28, 2002. The Coast Guard is now proceeding to implement the proposal with changes on an interim basis, allowing for further public comment until June 28, 2002 for consideration in development of the final rule.

Background and Purpose

The September 11, 2001 terrorist attacks on New York City and Washington, DC inflicted catastrophic human casualties and property damage. National security and intelligence officials warn that future terrorist attacks are likely. Due to these heightened security concerns, safety and security zones are prudent for vessels that may be likely targets of terrorist acts. This interim rule establishes safety and security zones for vessels the Captain of the Port (COTP) Boston determines are in need of a Coast Guard escort (“Escorted Vessels” or “EVs”).

Discussion of Interim Rule

The safety and security zones would prohibit entry into or movement in all waters 1000 yards ahead or astern, and 100 yards on each side of any EV in the following waters of the Boston Captain of the Port Zone: All waters of Boston Inner Harbor, including the waters of the Mystic River, Chelsea River, and Reserved Channel west of a line running from Deer Island Light, at position 42°20′25″ N, 070°57′15″ W, to Long Island, at position 42°19′48″ N, 070°57′15″ W, and west of the Long Island Bridge, running from Long Island to Moon Head. For the purposes of this rule, EVs operating in Boston Harbor include any vessel (as defined under 46 U.S.C. section 2101) deemed to be in need of an escort due to increased security risks present and identified by the COTP under the circumstances.

Whether a vessel is considered an EV is determined by the Captain of the Port Boston based on the potential threat posed by the vessel (or cargo aboard) to the safety and/or security to the maritime community, the crews or passengers of the EVs, and the surrounding communities from subversive or terrorist attack.

The safety and security zones are necessary to protect the EVs, their crews and/or passengers, others in the maritime community, and the surrounding local communities from subversive or terrorist attack against a vessel which could, by the nature of its cargo or the destructive capability of the vessel structure itself, potentially inflict a large number of casualties or otherwise have a serious negative impact on vessels, the port, or the environment. Since large commercial vessels fall into the description above, it is expected that the vast majority of vessels this rule is used to protect will be large commercial vessels restricted to the Boston ship channel.

The COTP Boston anticipates some impact on vessel traffic due to this regulation. However, as discussed in the Regulatory Evaluation section below, the impact is anticipated to be minimal. In addition, the safety and security zones are deemed necessary for the protection of life and property within the COTP Boston zone. Public notifications will be made prior to the effective period of this regulation via local notice to mariners. Marine information broadcasts will be utilized to notify the public of EV transits.

No person or vessel may enter or remain in a prescribed safety or security zone at any time without the permission of the COTP. Each person or vessel in a safety or security zone shall obey any direction or order of the COTP or Coast Guard representative on scene. 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 safety or security zone 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. This regulation is under the authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.

Discussion of Comments and Changes Implemented in the Interim Final Rule

The Coast Guard received 22 comments from the public regarding this proposal. All comments received were considered in the development of this interim final rule (IFR). Some changes implemented in the IFR are a result of inter-Coast Guard evaluations of how to better employ and enforce the regulation. A significant number of the changes are the result of comments and recommendations of stakeholders in the COTP Boston zone. These stakeholders include maritime industry, marina operators, the maritime law community, recreational boaters, the Massachusetts Port Authority, and the commercial fishing industry. The comments and respective changes (if any) are addressed below.

I. The Definition of What Type of Vessel (“High Interest Vessel”) This Regulation Applies to Is Unclear

The original proposed safety and security zones published in the Federal Register (67 FR 2614, January 18, 2002) were developed to protect High Interest Vessels (HIVs). Since that time the definition of HIVs for the purposes of Coast Guard maritime security operations and this regulation have diverged. As a result, vessels in need of protection under this regulation have been termed “Escorted Vessels.” Additionally, in the proposal we provided examples of cargoes and vessel types that might be considered HIVs. The list was not exclusive, but was meant to provide examples of the types of vessels which may be considered high risk. These examples were not essential to the regulation and created some confusion among the public. As a result they have been removed, since the intent of the regulation is to allow the COTP the flexibility to protect any vessel found to be in need of such protection.

II. The Term Vessel at Anchor Is Not Clearly Defined

Many comments stated concerns with the potential application of these safety and security zones to vessels at anchor. Some comments thought this would make the regulation applicable to moored vessels as well. It was determined that vessels to which this regulation would apply would not be allowed to anchor within Boston Harbor, and in fact would be required to anchor in Broad Sound well offshore of Boston Harbor if they anchored at all. In addition, the regulation was originally designed to fill a need to protect and provide escorts for moving vessels. As a result, all references to anchored vessels have been removed from the proposal.

III. EVs Entering the Weymouth Fore River and Salem Harbor Would Force Other Vessels Onto Shoals To Move Out of the Way. Enforcement in the Narrow Fore River Channel Would Be Near Impossible

Many comments raised concerns with EVs transiting the narrow channels and harbors of Salem and Weymouth. These comments raised concerns that other vessels located in the channels would have insufficient room to maneuver out of the way of an oncoming EV and associated safety and security zones. Due to the infrequent nature of commercial vessel transits in these two areas, coupled with the highly infrequent nature of the COTP designating EVs, we have determined that benefits of this regulation do not outweigh the enforcement complications of these safety and security zones in these areas. As a result this rule will only be effective in Boston Harbor, and will not be effective in Salem Harbor and the Weymouth Fore River, as originally proposed. Should the need arise, the Coast Guard will enact temporary regulations to protect vessels in these areas.

IV. An EV May Have the Potential To “Freeze” the Charles River Locks

Some comments presented concerns with the moving safety and security zones having an impact on recreational vessels attempting to transit the Charles River Dam during an EV transit. This regulation will be used to protect vessels deemed to be in need of escort protection by the COTP Boston. If the COTP needed to protect a vessel transiting in the vicinity of the Charles River Dam, other vessels would have to wait for the EV to pass or request permission to transit in its vicinity. However, it is expected that the vast majority of such vessels will be large commercial vessels restricted to the Boston Ship Channel. In this case we have determined that the zones are not large enough to extend from the main ship channel to the Charles River Dam.

V. All Vessel Traffic Would Have To “Freeze” in Place as Soon as an EV Enters the Harbor

Some comments raised concerns that as soon as an EV entered the Boston Harbor, all vessels would have to “freeze” in place. Traditionally, the Coast Guard grants access to vessels wishing to transit through a safety and security zone as long as the vessel does not pose a safety or security risk to the commercial vessel in transit, and would plan to do the same with this regulation. However, to further aid enforcement and the public we have determined that reducing the zone from 200 to 100 yards on each side of an EV will provide adequate protection for EVs and at the same time reduce the number of requests to the Coast Guard representative on scene from vessels wishing to enter the moving zones, easing the enforcement burden on escorting assets and allowing more space to navigate outside the zones.

VI. Is It Possible To Regulate the Transit Times of EVs To Benefit the Boating Community?

Some comments stated a desire to regulate the arrival and departure times of EVs around periods of high recreational boating activity. We have determined this is not practical. Large commercial vessels are dependant upon many (sometimes unpredictable) variables including tidal schedules, quantities of cargo at marine facilities, and the arrivals and departures of other vessels, making the management of their arrivals highly difficult to accomplish. Attempting to manage their transits in this manner would cause undue burden on marine industry and negative impacts upon the flow of commerce.

VII. Will This Regulation Economically Impact Marinas?

Some comments stated concerns that this regulation would impact marinas by forcing tenants to vacate their moorings and slips each time an EV moving zone passed over their marina. The COTP does not intend to force stationary moored boats to move each time an EV safety and security zone passes over them, and will not do so unless a security risk is identified at that marina. In this case the Coast Guard would only remove the boat or person deemed to be a security risk. The spirit of the regulation is to prevent vessels from approaching the EV inside the zone without Coast Guard permission.

VIII. Will This Regulation Impact the Normal Business of Those on Piers, Wharves, Marinas Who Are Not Operating Vessels?

Some comments expressed concerns over how the moving EV zone would impact harbor dock workers and waterfront facilities. Again, the Coast Guard does not intend to interfere with events occurring in stationary locations (as with the marinas) unless a specific security risk is identified on shore. In this case the Coast Guard would address only that specific risk.

IX. What Public Outreach Efforts Will the Coast Guard Pursue To Educate the Public Boating Community With Regards to This Regulation?

Some comments relayed interest in how the Coast Guard plans to inform the public of the specifics of this regulation. The Coast Guard plans to conduct a public outreach program through the local Port Operators Group, yacht club meetings, pamphlet distribution to mariners and industry utilizing the Coast Guard Auxiliary, Local Notice to Mariners, and safety marine information broadcasts.

X. How Will This Regulation Impact Local Lobster Fishermen?

Some comments stated concerns over how this regulation would impact the placement of lobster traps. The Captain of the Port anticipates minimal impact on lobstermen as with all other waterway users. Since the safety and security zones are moving, the lobstermen may simply wait the short time it takes for the vessel to pass or request to pass through the zone from the Coast Guard representative on scene.

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 so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

Although this regulation will prevent traffic from moving within a portion of Boston Harbor during EV transits, the effect of this regulation will not be significant due to the minimal time that vessels will be restricted from the area. Further, vessels can pass safely around the zones at most points in the Harbor, vessels will only have to wait a short time for the EV to pass if they cannot safely pass outside the zones, and advance notifications will be made to the local maritime community by marine information broadcasts.

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 interim rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Boston Harbor during EV transits. This rule will not have a significant economic impact on a substantial number of small entities due to the following factors: (1) The minimal time that vessels will be restricted from the area of the zones, (2) vessels can pass safely around the zones at most points in Boston Harbor, (3) vessels will only have to wait a short time for the EV to pass if they cannot safely pass outside the zones, (4) and advance notifications will be made to the local maritime community by marine information broadcasts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this interim 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), the Coast Guard wants to assist small entities in understanding this interim 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 LT Dave Sherry at the address listed under ADDRESSES.

Collection of Information

This interim rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

The Coast Guard has analyzed this interim rule under Executive Order 13132 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 interim rule would not impose an unfunded mandate.

Taking of Private Property

This interim 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 interim 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 interim rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This interim 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 interim 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 has considered the environmental impact of this interim 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.

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 § 165.114 to read as follows:

§ 165.114

Safety and Security Zones: Escorted Vessels—Boston Harbor, Massachusetts.

(a) Location. The following waters within the Boston Captain of the Port Zone, 1000 yards ahead and astern, and 100 yards on each side of any designated escorted vessel, are established as safety and security zones: All waters of Boston Inner Harbor, including the waters of the Mystic River, Chelsea River, and Reserved Channel west of a line running from Deer Island Light, at position 42°20′25″ N, 070°57′15″ W, to Long Island, at position 42°19′48″ N, 070°57′15″ W, and west of the Long Island Bridge, running from Long Island to Moon Head.

(b) Escorted vessels defined. For the purposes of this section, escorted vessels operating in Boston Harbor include the following: Any vessels deemed to be in need of escort protection by the Captain of the Port, Boston for security reasons or under other circumstances.

(c) Regulations.

(1) In accordance with the general regulations in §§ 165.23 and 165.33 of this part, entry into or movement within this zone is prohibited unless authorized by the Captain of the Port Boston.

(2) All vessel operators shall comply with the instructions of the COTP 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.

Dated: April 12, 2002.

B.M. Salerno,

Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.