2010-20746. Regulated Navigation Areas, Safety Zones, Security Zones; Deepwater Ports in Boston Captain of the Port Zone, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing regulated navigation areas (RNAs) and safety and security zones around the recently constructed Neptune Deepwater Port Facility, and modifying RNA and safety zone regulations for the existing Northeast Gateway Deepwater Port (NEGDWP), both of which are located in the waters of the Atlantic Ocean off the coast of Gloucester, Massachusetts. The purpose of these regulated areas is to protect vessels and mariners from the potential safety hazards associated with deepwater port operations, and to protect the liquefied natural gas carriers (LNGCs) and deepwater port infrastructure from security threats or other subversive acts. All vessels, with the exception of LNGCs and deepwater port support vessels, will be prohibited from anchoring within 1,000 meters of the submerged turret loading (STL) buoys associated with the deepwater port, and prohibited from entering waters within 500 meters of the deepwater port STL buoys or the LNGCs using them. Additionally, vessels will be prohibited from deploying equipment which could become entangled in submerged infrastructure within 1,000 meters of STL buoys.

DATES:

This rule is effective September 20, 2010.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-0589 and are available online at http://www.regulations.gov,, inserting USCG-2009-0589 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail LCDR Pamela Garcia, Coast Guard Sector Boston, 427 Commercial St., Boston, MA; telephone [phone]; e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On April 1, 2010, we published a notice of proposed rulemaking (NPRM) entitled “Regulated Navigation Areas, Safety Zones, Security Zones; Deepwater Ports in Boston Captain of the Port Zone, MA” in the Federal Register (75 FR 16370). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Basis and Purpose

The basis for this rulemaking is the Coast Guard's authority to establish security zones, safety zones, and regulated navigation areas, under 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, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. Generally, a security zone is an area of water, land, or both, designated for a certain time to protect vessels, harbors, ports, and waterfront facilities from sabotage, damage, or injury due to subversive acts, accidents, or other causes of a similar nature. A safety zone is an area of water, land, or both designated for a certain time for safety or environmental purposes. A regulated navigation area is a water area within a defined boundary for which regulations for vessels navigating within the area have been established, to control vessel traffic in a place determined to have hazardous conditions. 33 CFR 165.10; U.S.C.G. Commandant Instruction Manual M16704.3A, 1-5, 1-6.

The purpose of this rulemaking is 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 the Neptune and Northeast Gateway deepwater ports. The Neptune RNAs will prohibit vessels from anchoring or otherwise deploying equipment that could become entangled in submerged infrastructure within 1,000 meters of Neptune's STL buoys, and will 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 Neptune RNAs will be prohibited without the permission of the COTP. This diving prohibition will also be extended to the existing RNAs for the Northeast Gateway Deepwater Port.

Background

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 the two submerged turret loading buoys are: STL Buoy A, Latitude 42°29′12.3″ N, Longitude 70°36′29.7″ W and STL Buoy B, Latitude 42°27′20.5″ N, Longitude 70°36′7.3″ W. Neptune can accommodate the mooring, connecting, and offloading of two (2) LNGCs 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.

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 authority of the DPA, 33 U.S.C. 1509(d)(1), for the purpose of “navigational safety.” 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 deepwater ports in the Boston COTP Zone appear at 33 CFR 150.940(c).

Discussion of Comments and Changes

No comments or changes were suggested to the proposed rule. None have been made, but we have recalculated latitude and longitude descriptions to the tenth of a second.

Regulatory Analyses

We developed this 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 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 will be implemented by this 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 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, fish, or conduct other operations within 1,000 meters of the Neptune Deepwater Port STL buoys, as well as the owners or operators of vessels intending to conduct diving operations in the RNAs for NEGDWP. The impact on small entities is expected to be minimal because vessels wishing to transit the Atlantic Ocean in the vicinity of these deepwater ports may do so, provided they remain more than 500 meters from the deepwater port's STL buoys and any LNGC vessels calling on the deepwater port; and provided they refrain from deploying equipment which could become entangled in submerged infrastructure within 1,000 meters of STL buoys. Vessels wishing to fish in the area may do so in nearby and adjoining areas where otherwise permitted by applicable fisheries regulations, and vessels wishing to conduct diving operations may do so with the permission of the COTP.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking.

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.

Collection of Information

This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule would not cause 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

We have 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 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.

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. 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.

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

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 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction.

This 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.

An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

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 amends 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 § 150.940 by revising paragraph (c)(4)(iii) and adding paragraph (d) to read as follows:

§ 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°29′12.3″ N, Longitude 070°36′29.7″ W; and STL Buoy “B”: Latitude 42°27′20.5″ N, Longitude 070°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°27′26.6″	70°35′13.1″
(ii) A rhumb line to	42°29′18.3″	70°35′35.4″
(iii) Then an arc with a 1250 meter radius centered at point	42°29′12.3″	70°36′29.7″
(iv) To a point	42°29′6.3″	70°37′24.0″
(v) Then a rhumb line to	42°27′14.7″	70°37′1.6″
(vi) Then an arc with a 1250 meter radius centered at point	42°27′20.5″	70°36′7.3″
(vii) To the point of starting	42°27′26.6″	70°35′13.1″

(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 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.

4. Amend § 165.117 by revising paragraphs (a)(3) and (d)(1) to read as follows:

§ 165.117

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

(a) * * *

(3) * * *

(i) * * *

(ii) The geographic coordinates forming the loci for the regulated navigation areas, safety, and security zones for Neptune Deepwater Port are: 42°29′12.3″ N, 70°36′29.7″ W; and 42°27′20.5″ N, 70°36′7.3″ W.

(iii) [Reserved].

* * * * *

(d) * * *

(1) No vessel may anchor, engage in diving operations, or commercial fishing using nets, dredges, traps (pots), or use of remotely operated vehicles (ROVs) in the regulated navigation areas set forth in paragraph (a)(1) of this section.

* * * * *

Dated: August 10, 2010.

D.A. Neptun,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.