08-1364. Regulated Navigation Areas, Safety Zones, Security Zones, and Deepwater Port Facilities; Navigable Waters of the Boston Captain of the Port Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing regulated navigation areas around a recently constructed deepwater port facility in the waters of the Atlantic Ocean near the entrance to Boston Harbor as well as safety and security zones around liquefied natural gas carriers (LNGCs) calling on these deepwater port facilities. The purpose of these regulated navigation areas, as well as safety and security zones, is to protect vessels and mariners from the potential safety hazards associated with deepwater port operations and to protect the LNGCs and deepwater port infrastructure from security threats or other subversive acts. All vessels, with the exception of LNGCs and deepwater port support vessels, are prohibited from anchoring or otherwise deploying equipment which could become entangled in submerged infrastructure within 1000 meters of the submerged turret loading (STL) buoys associated with the deepwater port, and are prohibited from entering waters within 500 meters of the deepwater port STL buoys or the LNGCs using them. Additionally, this rule makes minor amendments to the existing LNG security regulations for the Boston Captain of the Port (COTP) Zone to reflect multi-agency enforcement of those regulations.

DATES:

This rule is effective July 17, 2008.

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-2007-0087 and are available online at http://www.regulations.gov. This material is also available for inspection or copying at two locations: 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; and Coast Guard Sector Boston, 427 Commercial Street, Boston, MA 02109 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call LCDR Heather Morrison at 617-223-3028. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On April 11, 2008, we published a notice of proposed rulemaking (NPRM) entitled “Regulated Navigation Areas, Safety Zones, Security Zones, and Deepwater Port Facilities; Navigable Waters of the Boston Captain of the Port Zone” in the Federal Register (73 FR 71). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

On May 14, 2007, the Maritime Administration (MARAD), in accordance with the Deepwater Port Act of 1974, as amended, issued a license to Excelerate Energy to own, construct, and operate a natural gas deepwater port, “Northeast Gateway.” Northeast Gateway Deepwater Port (NEGDWP) is located in the Atlantic Ocean, approximately 13 nautical miles south-southeast of the City of Gloucester, Massachusetts, in Federal waters. The coordinates for its two submerged turret loading (STL) buoys are: STL Buoy A, Latitude 42°23′38″ N, Longitude 070°35′31″ W and STL Buoy B, Latitude 42°23′56″ N, Longitude 070°37′00″ W. The NEGDWP can accommodate the mooring, connecting, and offloading of two liquefied natural gas carriers (LGNCs) at a time. The NDGDWP 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.

In order to protect mariners from the hazards associated with submerged deepwater port infrastructure and to ensure safety and security at and around LNGCs engaged in regasification and transfer operations at deepwater ports, the Coast Guard is exercising its authority under the Ports and Waterway Safety Act (33 U.S.C. 1221, et seq.) to establish regulated navigation areas (RNAs) around the primary components of NEGDWP. The RNAs will prohibit vessels from anchoring or otherwise deploying equipment that could become entangled in submerged infrastructure within 1000 meters of the STL buoys associated with NEGDWP facilities. Specifically, in addition to anchoring, vessels will be precluded from engaging in commercial fishing in the RNAs using nets, dredges or traps.

Under the authority of the Port and Waterways Safety Act (33 U.S.C. 1226) and the Magnuson Act (50 U.S.C. 191), the Coast Guard is also placing safety and security zones within the corresponding RNAs that will prohibit vessels from entering all waters within a 500-meter radius of the same STL buoys. The Coast Guard considers the RNAs that are being established by this rule as meeting the requirement and intent of the Deepwater Port Act of 1974, as amended, and as codified at 33 U.S.C. 1509(d). Accordingly, in addition to amending 33 CFR part 165 (Regulated Navigation Areas and Limited Access Area), this rulemaking also amends a corresponding section in 33 CFR part 150 (Deepwater Ports: Operations). The amendments to 33 CFR part 150 include amending that part to reflect ships' routing measures—“an area to be avoided” (ATBA) and two “no anchoring areas” (NAA)—that are being concurrently established in consultation with the International Maritime Organization. The ATBA and NAAs will be reflected on nautical charts of the affected area along with the regulated navigation areas described herein.

This rule also promotes safety and security of LNG transfer operations by amending the existing regulations regarding LNGCs in the Boston Captain of the Port (COTP) Zone, to place safety and security zones around LNGCs while they are anchored, moored, or otherwise engaged in regasification and transfer procedures with deepwater ports within the navigable waters of the United States in the Boston COTP Zone.

Regulations already exist which provide for safety and security zones around LNGCs while transiting, anchored, or moored in other portions of the Boston COTP Zone. These regulations can be found at 33 CFR 165.110. The current regulations provide for safety and security zones for LNGCs transiting the Boston COTP Zone, anchored in the Broad Sound, or moored at the Distrigas LNG facility in Everett, Massachusetts. This rule amends those regulations to add safety and security zones around vessels calling at deepwater ports in the Boston COTP Zone and within the navigable waters of the United States, as defined in 33 CFR 2.3.6(a) (i.e., out to 12 nautical miles from the territorial sea baseline). Without these changes, the security zone around a transiting LNGC would cease to exist once the vessel moored to NEGDWP. This rule eliminates that potential gap in security coverage.

This rule also adds definitions to make the regulations more clear, while eliminating the definition of “navigable waters of the United States” currently found at 33 CFR 165.110(a) as that paragraph is duplicative of the standard definition found at 33 CFR 2.36(a).

Finally, this rule amends the language describing who may enforce the safety and security zones surrounding LNGCs in the Boston COTP Zone to better reflect recently executed Memoranda of Agreement between the Coast Guard and the Commonwealth of Massachusetts, the City of Boston, and other local municipalities. Under the terms of these agreements, State and local law enforcement officers may enforce, on behalf of the Coast Guard, maritime safety and security zones implemented by the Coast Guard under the authority of the Magnuson Act and the Port and Waterways Safety Act when falling within their respective jurisdiction. Copies of these agreements are available in the public docket for this rule where indicated in the ADDRESSES section above.

Discussion of Comments and Changes

No comments or changes were suggested to the proposed rule. None have been made.

Discussion of Rule

The Coast Guard is establishing regulated navigation areas (RNAs) in which vessels may not anchor within 1000 meters of the STL buoys for NEGDWP as described above. Additionally, safety and security zones within the RNAs are hereby established to prohibit vessels, other than LNGCs and support vessels as defined in 33 CFR 148.5, from entering waters within 500 meters of the aforementioned STL buoys.

The Coast Guard is also establishing safety and security zones encompassing all waters within a 500-meter radius of vessels carrying LNG while they are anchored, moored, or attached to or otherwise engaged in regasification or transfer procedures with deepwater ports.

Additionally, the Coast Guard is amending 33 CFR Part 150 to reflect one recommendatory ships' routing measure—an ``area to be avoided”—and two mandatory ships' routing measures—two “no anchoring areas”—that are being concurrently established with, but separate and apart from, this rulemaking in consultation with the International Maritime Organization.

Finally, this rule alters the existing language of the regulations for LNGCs operating in the Boston COTP Zone to reflect the fact that federal, state, and local law enforcement personnel may enforce such zones within their respective jurisdictions on behalf of the COTP.

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 (NEPQ), the Coast Guard, in cooperation with MARAD, prepared an Environmental Impact Statement (EIS) in conjunction with reviewing the NEGDWP licensing application. Among other things, the EIS assessed the potential economic impacts associated with the construction and operation of NEGDWP, including the no anchoring and limited access areas that would be implemented by this rule. That EIS is available in the public docket for the licensing application (USCG-2005-22219) 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 or fish within 1000 meters of the STL Buoys for NEGDWP. The impact on small entities is expected to be minimal because vessels wishing to transit the Atlantic Ocean in the vicinity of the deepwater port may do so, provided they remain more than 500 meters from NEGDWP's STL Buoys and any LNGC vessels calling on the deepwater port, and provided they refrain from anchoring or deploying nets, dredges, or traps within 1000 meters of the STL Buoys. Vessels wishing to fish in the area may do so in nearby and adjoining areas when otherwise permitted by applicable fisheries regulations.

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 could better evaluate its effects on them and participate in the rulemaking process.

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 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. No comments were received as a part of this rulemaking.

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 Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, 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 that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. The reason it falls under this exception is that it is a regulation establishing a Regulated Navigation Area, security zone, and a safety zone.

A final environmental analysis checklist and a final 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, and 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. In § 150.940, add paragraph (c) to read as follows:

§ 150.940

Safety zones for specific deepwater ports.

* * * * *

(c) Northeast Gateway Deepwater Port (NEGDWP).

(1) Location. The safety zones for the NEGDWP consist of circular zones, each with a 500-meter radius and centered on each of the deepwater port's two submerged turret loading (STL) buoys. STL Buoy “A” is centered at the following coordinates: 42°23′38″ N, 070°35′31″ W. STL Buoy “B” is centered at the following coordinates: 42°23′56″ N, 070°37′00″ W. Each safety zone is located approximately 13 miles south-southeast of the City of Gloucester, Massachusetts, in Federal waters.

(2) No anchoring areas. Two mandatory no anchoring areas for NEGDWP are established for all waters within circles of 1,000-meter radii centered on the submerged turret loading buoy positions set forth in paragraph (c)(1) of this section.

(3) Area to be avoided. An area to be avoided (ATBA) for NEGDWP is as described in Table 150.940(B):

Table 150.940(B).—ATBA for NEGDWP

Plotting guidance	Latitude N	Longitude W
(i) Starting at	42°24′17″	070°35′16″
(ii) A rhumb line to:	42°24′35″	070°36′46″
(iii) Then an arc with a 1250 meter radius centered at point	42°23′56″	070°37′00″
(iv) To a point	42°23′17″	070°37′15″
(v) Then a rhumb line to	42°22′59″	070°35′45″
(vi) Then an arc with a 1250 meter radius centered at point	42°23′38″	070°35′31″
(vii) To the point of starting	42°24′17″	070°35′16″

(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 (c)(1) of this section unless previously authorized by the Captain of the Port (COTP) Boston, or his/her authorized representative.

(ii) Notwithstanding paragraph (c)(4)(i) of this section, tankers and support vessels, as defined in 33 CFR 148.5, operating in the vicinity of NEGDWP 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 or operate within the safety zones described in paragraph (c)(1) of this section must contact the COTP or the COTP's authorized representative to obtain permission by calling the Sector Boston Command Center at 617-223-5761. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's authorized representative.

(iv) No vessel, other than a support vessel or tanker calling on NEGDWP may anchor in the area described in paragraph (c)(2) of this section.

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. 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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

4. In § 165.110, revise paragraphs (a), (c)(2) and (c)(3); and add paragraph (b)(4) to read as follows:

§ 165.110

Safety and Security Zone; Liquefied Natural Gas Carrier Transits and Anchorage Operations, Boston, Massachusetts.

(a) Definitions. As used in this section—

Authorized representative means a Coast Guard commissioned, warrant, or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port (COTP) Boston.

Deepwater port means any facility or structure meeting the definition of deepwater port in 33 CFR 148.5.

Support vessel means any vessel meeting the definition of support vessel in 33 CFR 148.5.

(b) * * *

(4) Vessels calling on a deepwater port. All waters within a 500-meter radius of any LNGC engaged in regasification or transfer, or otherwise moored, anchored, or affixed to a deepwater port listed in 33 CFR 150.490 and falling within the waters of the Boston COTP Zone, as defined in 33 CFR 3.05-10.

(c) * * *

(2) No person or vessel may enter the waters within the boundaries of the safety and security zones described in paragraph (b) of this section unless previously authorized by the COTP Boston, or his/her authorized representative. However, LNGCs and support vessels, as defined in 33 CFR 148.5, operating in the vicinity of NEGDWP 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.

(3) All vessels operating within the safety and security zones described in paragraph (b) of this section must comply with the instructions of the COTP or his/her authorized representative.

5. Add § 165.117 to read as follows:

§ 165.117

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

(a) Location. (1) Regulated navigation areas. All waters within a 1,000 meter radius of the geographical positions set forth in paragraph (a)(3) of this section are designated as regulated navigation areas.

(2) Safety and security zones. All waters within a 500-meter radius of the geographic positions set forth in paragraph (a)(3) of this section are designated as safety and security zones.

(3) Coordinates. (i) The geographic coordinates forming the loci for the regulated navigation areas, safety and security zones for the Northeast Gateway Deepwater Port are: 42°23′38″ N, 070°35′31″ W; and 42°23′56″ N, 070°37′00″ W (NAD 83).

(ii) [Reserved]

(b) Definitions. As used in this section—

Authorized representative means a Coast Guard commissioned, warrant, or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port (COTP) Boston.

Deepwater port means any facility or structure meeting the definition of deepwater port in 33 CFR 148.5.

Dredge means fishing gear consisting of a mouth frame attached to a holding bag constructed of metal rings or mesh.

Support vessel means any vessel meeting the definition of support vessel in 33 CFR 148.5.

Trap means a portable, enclosed device with one or more gates or entrances and one or more lines attached to surface floats used for fishing. Also called a pot.

(c) Applicability. This section applies to all vessels operating in the regulated navigation areas set forth in paragraph (a) of this section, except—

(1) Those vessels conducting cargo transfer operations with the deepwater ports whose coordinates are provided in paragraph (a)(3) of this section,

(2) Support vessels operating in conjunction therewith, and

(3) Coast Guard vessels or other law enforcement vessels operated by or under the direction of an authorized representative of the COTP Boston.

(d) Regulations. (1) No vessel may anchor or engage in commercial fishing using nets, dredges, or traps (pots) in the regulated navigation areas set forth in paragraph (a)(1) of this section.

(2) In accordance with the general regulations in §§ 165.23 and 165.33 of this part, entry into or movement within the safety and security zones designated in paragraph (a)(2) of this section is prohibited unless authorized by the COTP Boston, or his/her authorized representative.

(3) Notwithstanding paragraph (d)(2) of this section, tankers and support vessels, as defined in 33 CFR 148.5, operating in the vicinity of NEGDWP 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.

(4) All vessels operating within the safety and security zones described in paragraph (a)(2) of this section must comply with the instructions of the COTP or his/her authorized representative.

Dated: June 6, 2008.

T.S. Sullivan,

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