01-24236. Anchorages, Regulated Navigation Areas, Safety and Security Zones; Boston Marine Inspection Zone and Captain of the Port Zone

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing three temporary Regulated Navigation Areas (RNAs) and one temporary Anchorage Ground for certain vessels over 300 gross tons operating within the Boston Marine Inspection Zone and Captain of the Port Zone. This action is necessary to ensure public safety and prevent sabotage or terrorist acts. The rule will regulate the circumstances under which certain vessels may enter, transit or operate within Boston Harbor, Salem Harbor and Weymouth Fore River Channel and establish a temporary Massachusetts Bay Anchorage Ground for certain vessels awaiting the Captain of the Port's permission to enter the Regulated Navigation Areas. This rule also establishes five safety and security zones excluding all vessels from waterfront facilities and other areas within the Captain of the Port Zone at high risk from sabotage and terrorist acts.

DATES:

This rule is effective from September 18, 2001 until March 16, 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:

Lieutenant (junior grade) Dave Sherry, Marine Safety Office Boston, Waterways Management Division, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. On September 11, 2001, two commercial aircraft were hijacked from Logan Airport in Boston, Massachusetts and flown into the World Trade Center in New York, New York inflicting catastrophic human casualties and property damage. A similar attack was conducted on the Pentagon on the same day. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. This rulemaking is urgently required to prevent future terrorist strikes within and adjacent to waters within the Boston Marine Inspection Zone and Captain of the Port Zone. The delay inherent in the NPRM process is contrary to the public interest insofar as it may render individuals, vessels and facilities within and adjacent to the Boston Marine Inspection Zone and Captain of the Port Zone vulnerable to subversive activity, sabotage or terrorist attack.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The measures contemplated by the rule are intended to prevent future terrorist attack against individuals, vessels and waterfront facilities within or adjacent to the Boston Marine Inspection Zone and Captain of the Port Zone. Immediate action is required to accomplish these objectives. Any delay in the effective date of this rule is impracticable and contrary to the public interest.

Background and Purpose

On September 11, 2001, terrorists launched attacks on civilian and military targets within the United States killing large numbers of people and damaging properties of national significance. Vessels operating within the Boston Marine Inspection Zone and Captain of the Port Zone present possible targets of terrorist attack or platforms from which terrorist attacks may be launched upon other vessels, waterfront facilities and adjacent population centers. The Coast Guard has established a temporary anchorage ground on Massachusetts Bay and Regulated Navigation Areas within the waters of Boston Harbor, Salem Harbor and Weymouth Fore River Channel, as part of a comprehensive, port security regime designed to safeguard human life, vessels and waterfront facilities from sabotage or terrorist acts. The Captain of the Port will determine the threat posed by and to affected vessels before they are allowed to enter the Regulated Navigation Areas and may establish conditions under which they are allowed to enter, transit or operate within those areas. Prior to the determination of whether and under what conditions a vessel may enter, transit or operate within the Regulated Navigation Areas, vessels may be directed by the Captain of the Port to temporarily anchor in the temporary anchorage area established in Massachusetts Bay. In addition, the Coast Guard has established five (5) safety and security zones having identical boundaries, which restrict entry into or movement within portions of Boston Inner Harbor, Salem Harbor and Plymouth Bay.

Regulated Navigation Area and Anchorage Area

The rule establishes three Regulated Navigation Areas (RNAs) comprised of the waters within Boston Inner Harbor, Salem Inner Harbor and the Weymouth Fore River Channel, respectively. Towing vessels, tankers, tug and barge combinations, research vessels, container, dry bulk ships and passenger ships over 300 gross tons are required to obtain authorization from the Captain of the Port before entering any of these RNAs. The rule does not apply to commuter ferries, recreational boats or commercial fishing vessels.

In order to obtain authorization, a vessel subject to this rule is required to submit a “Notice of Arrival” information sheet and its crew list to Coast Guard Marine Safety Office Boston at least 24 hours in advance of its intended entry into an RNA. In addition, it will be required to undergo an inspection to the satisfaction of the Captain of the Port. Vessels awaiting Captain of the Port inspection or authorization will be directed to anchor in the Massachusetts Bay Anchorage Grounds established by this rule. Vessels to which this rule is applicable must also receive approval prior to leaving the port. Vessels will be required to notify the Captain of the Port of any changes in crew while in Port prior to receiving authorization to depart any of the Regulated Navigation Areas.

The Captain of the Port may authorize a vessel subject to this rule to enter an RNA under such circumstances and conditions as he deems appropriate to minimize the threat of injury to the vessel, the port, waterfront facilities or adjacent population centers resulting from sabotage or terrorist acts launched against or from the vessel.

Violations of the RNA regulations are punishable by civil penalties (not to exceed $25,000 per violation), criminal penalties (imprisonment for not more than 6 years and a fine of not more than $250,000) and in rem liability against the offending vessel.

Safety and Security Zones

The rule also establishes five distinct safety and security zones having identical boundaries. Four of these zones are being established by reference to a radius around a particular coordinate or easily identifiable landmark. One zone is being established by reference to readily identifiable boundaries. All of the zones are being established in order to protect the waterfront facilities, terminals, power plants, as well as persons and vessels from subversive or terrorist acts.

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. The Captain of the Port may take possession and control of any vessel in a safety and 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.

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.

Regulatory Evaluation

While this rule may be later determined to be a significant regulatory action under section 3(f) of Executive Order 12866, requiring further analysis of potential costs and benefits under section 6(a)(3) of that order, immediate implementation of this rule is necessary to ensure the safety and security of the Port and, as such, must be made without the requisite, prior administrative finding. The Office of Management and Budget has not reviewed it under that order. It may, or may not, be significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). However, the sizes of the zones are the minimum necessary to provide adequate protection for the public, vessels, and vessel crews. Any vessels seeking entry into or movement within the safety and security zones must request permission from the Captain of the Port or his authorized patrol representative. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting the public, vessels, and vessel crews from the further devastating consequences of the aforementioned acts of terrorism, and from potential future sabotage or other subversive acts, accidents, or other causes of a similar nature.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Coast Guard has not yet determined whether this proposal will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses and 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 is not presently able to certify under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) that this final rule will not have a significant economic impact on a substantial number of small entities. However, given the continued risk and potential damage to the national security interests of the United States, in addition to the need to protect and safeguard innocent civilians within and near the port, it is necessary to implement this regulation before said analysis may be fully accomplished. Maritime advisories will be initiated by normal methods and means and will be widely available to users of the area.

Assistance for Small Entities

Under subsection 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 final 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 final rule and you have questions concerning its provisions or options for compliance, please call Lieutenant (junior grade) 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 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 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 will 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

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 does not create 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, 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. 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.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 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 for inspection or copying where indicated under ADDRESSES.

List of Subjects

33 CFR Part 110

• Anchorage Grounds

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 110 and 165 as follows:

PART 110—ANCHORAGE REGULATIONS

1. The authority citation for part 110 continues to read as follows:

Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 49 CFR 1.46 and 33 CFR 1.05-1(g).

2. Add temporary § 110.T01-162 to read as follows:

§ 110.T01-162

Anchorage Grounds: Massachusetts Bay.

(a) Anchorage grounds. The waters of Massachusetts Bay enclosed by a line beginning at position 42°30′00″N, 070°32′00″W and running east to position 42°30′00″N, 070°25′00″W; thence running south to position 42°23′00″N, 070°25′00″W; thence running west to position 42°23′00″N, 070°32′00″ and thence running north back to the beginning position.

(b) Effective dates. This regulation is effective from September 18, 2001 until March 16, 2002.

(c) Regulations. (1) The Massachusetts Bay Anchorage Grounds are reserved for vessels over 300 gross tons which have been directed to the anchorage grounds while awaiting the Captain of the Port's authorization to enter Regulated Navigation Areas comprised of the waters within Boston Inner Harbor, Salem Inner Harbor or Weymouth Fore River Channel.

(2) Vessels anchored in this area shall move promptly upon notification by the Captain of the Port.

(3) When directed to enter the anchorage by the Captain of the Port, vessels shall do so at safe speed in accordance with the applicable navigation rules.

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

3. 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.

4. Add temporary § 165.T01-162 to read as follows:

§ 165.T01-162

Regulated Navigation Area: Boston Marine Inspection Zone and Captain of the Port Zone.

(a) Regulated navigation area. The following waters within the boundaries of the Boston Marine Inspection Zone and Captain of the Port Zone are established as Regulated Navigation Areas:

(1) Regulated Navigation Area A. All waters of the Boston Inner Harbor, including 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.

(2) Regulated Navigation Area B. All waters of the Salem Inner Harbor southwest of a line running from Juniper Point at position 42°32′-02″N, 070°51′-52″ W and Fluen Point at position 42°31′-16″N, 070°51′-12″W.

(3) Regulated Navigation Area C. All waters of the Weymouth Fore River Channel, Hingham Bay and Hull Bay, south of a line running from Windmill Point at position 42°18′-14″N, 070-55′-19″ to Peddocks Island at position 42°18′-10″N, 070°55′-38″W and a east of a line running across West Gut from West Head at position 42°17′-13″N, 070°56′-55″W and Nut Island at position 42°16′-48″N, 070°57′-15″W.

(b) Applicability. This section applies to all towing vessels, tankers, tug and barge combinations, research vessels, container and dry bulk vessels, and passenger ships over 300 gross tons. It does not apply to commuter boats, recreational boats or commercial fishing vessels.

(c) Effective dates. This section is effective from September 18, 2001 until March 16, 2002.

(d) Regulations. (1) Any vessel intending to enter, transit or operate within the Regulated Navigation Areas is required to submit its crew list and a “Notice of Arrival” information sheet to the Captain of the Port at Coast Guard Marine Safety Office Boston no less than 24 hours in advance of the vessel's intended port call. “Notice of Arrival” information sheets may be obtained from Marine Safety Office Boston. Requests for and submission of forms may be made via facsimile machine number [phone].

(2) Any vessel intending to transit, operate within, or leave the Regulated Navigation Areas is required to submit a notification of any change of crew that occurred while in port, if any, including a list of old and new crew members, and the names, nationality, and passport numbers of any crew who have left the vessel.

(3) Vessels must be inspected to the satisfaction of the United States Coast Guard and obtain authorization from the Captain of the Port before entering the Regulated Navigation Areas.

(4) Vessels awaiting inspection or Captain of the Port authorization to enter Regulated Navigation Areas will anchor in the Massachusetts Bay Anchorage Ground.

5. Add temporary °165.T01-171 to read as follows:

§ 165.T01-171

Safety and Security Zones: Boston Marine Inspection Zone and Captain of the Port Zone.

(a) Safety and security zones. The following are established as safety and security zones:

(1) All waters of the Mystic River within a five hundred (500) yard radius of the Distrigas terminal pier in Everett, MA.

(2) All waters of Boston Harbor, including the Reserved Channel, west of a line connecting the Southeastern tip of the North Jetty and the Northeastern corner of the Paul W. Conley Marine Terminal pier.

(3) All waters of Boston Inner Harbor within a two hundred (200) yard radius of Pier 2 at the Coast Guard Integrated Support Command Boston, Boston, MA.

(4) All waters of Plymouth Bay within a five hundred (500) yard radius of the cooling water discharge canal at the Pilgrim Nuclear Power Plant, Plymouth, MA.

(5) All waters of Salem Harbor within a five hundred (500) yard radius of the PG & E U.S. Generating power plant pier in Salem, MA.

(b) Effective dates. This section is effective from September 18, 2001 until March 16, 2002.

(c) Regulations. (1) The general regulations contained in 33 CFR 165.23 and 165.33 apply.

(2) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. These personnel comprise commissioned, warrant, and petty officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.

Dated: September 18, 2001.

G.N. Naccara,

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