[Federal Register: July 23, 2004 (Volume 69, Number 141)]
[Rules and Regulations]
[Page 43908-43911]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy04-9]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-04-002]
RIN 1625-AA87 (Formerly RIN 1625-AA00)
Security Zones; Democratic National Convention, Boston, MA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard has established a series of temporary security
zones on the Charles River in the vicinity of the FleetCenter/North
Station, throughout a portion of Boston Inner Harbor in the vicinity of
Logan International Airport and surrounding Very Important Person (VIP)
vessels designated by the Captain of the Port (COTP) Boston,
Massachusetts, to be in need of Coast Guard escort for security reasons
while they are transiting the COTP Boston, Massachusetts zone. These
temporary zones are needed to safeguard protectees, the public,
designated VIP vessels and crews, other vessels and crews, and the
infrastructure within the COTP Boston, Massachusetts zone from
terrorist or subversive acts during the Democratic National Convention
(DNC): a National Special Security Event (NSSE), being held from July
26, 2004, to July 29, 2004, at the Fleet Center/North Station
Facilities, in Boston, Massachusetts. These security zones will
prohibit entry into or movement within certain portions of the Charles
River in the vicinity of the FleetCenter/North Station, Boston Inner
Harbor in the vicinity of Logan International Airport, and 50 yards
surrounding designated VIP vessels in the COTP Boston, Massachusetts
zone, during the specified closure periods within the July 24, 2004, to
July 31, 2004, timeframe.
DATES: This rule is effective from 8 a.m. e.d.t. on July 24, 2004,
through 10 p.m. e.d.t. on July 31, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket (CGD01-04-002) and are available for inspection or
copying at Marine Safety Office Boston, 455 Commercial Street, Boston,
MA between 8 a.m. and 3 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Daniel Dugery,
Waterways Safety and Response Division, Marine Safety Office Boston, at
(617) 223-3000.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 21, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zones; Democratic National Convention,
Boston, MA'' in the Federal Register (69 FR 29246). We received one
electronically submitted comment regarding the proposed rule. No public
meeting was requested, and none was held.
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. This rule is needed to protect
former presidents and their spouses, the Democratic nominee for
president and vice president, their spouses, and particular U.S.
Congressmen from potential acts of terrorism or subversive acts during
the Democratic National Convention (DNC). Any delay encountered in this
rule's effective date would be contrary to public interest and public
safety.
Background and Purpose
In light of terrorist attacks on New York City and Washington, DC
on September 11, 2001, and the continuing concern for future terrorist
and or subversive acts against the United States, especially at events
where a large number of persons are likely to congregate, the Coast
Guard is establishing temporary security zones in certain waters of the
Charles River in the vicinity of the FleetCenter/North Station, certain
waters of Boston Inner Harbor in the vicinity of Logan International
Airport, and surrounding VIP designated vessels identified by the COTP
Boston, Massachusetts during the DNC. The DNC has been designated a
National Special Security Event (NSSE) and will occur between July 26,
2004, and July 29, 2004, at the FleetCenter/North Station facilities,
in Boston, Massachusetts. Security measures for this event, including
security zones proposed herein, are necessary from July 24,2004 to July
31, 2004, and are needed to safeguard maritime transportation
infrastructure, the public, and designated protectees, and to safeguard
designated VIP vessels carrying protectees, from potential acts of
violence or terrorism during DNC activities. The planning for these
security zones has been conducted in conjunction with, and as a result
of requests from, the United States Secret Service (USSS), the lead
federal agency for the DNC, and the Capitol Police. This rule will
temporarily close sections of the Charles River in the vicinity of the
FleetCenter/North Station, certain Boston Inner Harbor water areas
along the perimeter of Logan International Airport, and surrounding
designated VIP vessels identified by the COTP Boston, Massachusetts, to
be in need of Coast Guard escort for security reasons while they are
transiting the COTP Boston, Massachusetts zone, at specified times from
July 24, 2004, to July 31, 2004.
For purposes of this rulemaking, designated VIP vessels include any
vessels designated by the Coast Guard COTP Boston, Massachusetts to be
in need of Coast Guard escort in the COTP Boston, Massachusetts zone,
based on a request from the USSS or the Capitol Police. Any VIP
designated vessel may contain protectees. ``Protectees'' for the
purposes of the USSS include the President of the United States and
[[Page 43909]]
former presidents and their spouses, the Democratic nominee for
president, and the Democratic nominee for vice president and their
spouses. ``Protectees'' for the purposes of the Capitol Police include
particular U.S. Congressmen. One or more Coast Guard Cutters or small
boats will escort designated VIP vessels deemed in need of escort
protection.
The Captain of the Port Boston, Massachusetts will notify the
maritime community of the periods during which the security zones will
be enforced. Broadcast notifications will be made to the maritime
community advising them of the boundaries of the zones.
No person or vessel may enter or remain in the prescribed security
zones at any time without permission of the Captain of the Port. Each
person or vessel in a security zone must obey any direction or order of
the COTP, or the designated Coast Guard on-scene representative. 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 security zone described herein, is
punishable by, among others, civil penalties (not to exceed $32,500 per
violation, where each day of a continuing violation is a separate
violation), criminal penalties (imprisonment for not more than 6 years
and a fine for not more than $250,000 for an individual and $500,000
for an organization), in rem liability against the offending vessel and
license sanctions. This rule is established under the authority
contained in 50 U.S.C. 191, and 33 U.S.C. 1226 and 1231.
As part of the Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways
Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take
actions, including the establishment of security zones, to prevent or
respond to acts of terrorism against individuals, vessels, or public or
commercial structures. Moreover, the Coast Guard has authority to
establish security zones pursuant to the Act of June 15, 1917, as
amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et
seq.)(the ``Magnuson Act'') and implementing regulations promulgated by
the President in subparts 6.01 and 6.04 of part 6 of title 33 of the
Code of Federal Regulations.
Discussion of Comments and Changes
One electronically filed comment was received regarding the
proposed regulation. The content of the comment was three-fold. It
recognized the need to establish restrictions during the DNC period
based on the significance of the event and the current threat
environment, and commended the proposed rule for appropriately
balancing security needs with waterway use. It recommended further
outreach efforts, and lastly suggested the rule could be improved by
providing additional clarification to waterway users regarding
application of the restrictions. The specific questions posed and
responses follow:
To address outreach, both the Coast Guard and the USSS have
undergone extensive outreach efforts to ensure affected waterway users
would be informed of DNC related waterway restrictions. Information on
proposed restrictions was provided at Boston Port Operators Group
meetings on February 18, March 17, and April 21, at two specific
industry stakeholder meetings on March 30 and 31, and at a
harbormasters and salvors meeting on May 27, 2004.
Meetings were also held at the Watertown Yacht Club and the Jubilee
Yacht Club, which included representatives from numerous clubs in the
Boston and surrounding areas. Further, an informational brochure
outlining the proposed security zones was distributed at these
meetings, to other local boating and yacht clubs, to the Massachusetts
Bay Yacht Association, and at local boat shows by the Coast Guard
Auxiliary. The informational brochure is also posted on the Marine
Safety Office Boston internet Web site found at http://uscg.mil/d1/units/msobos/
.
The Coast Guard and the USSS will continue notifications by
distribution of the final rule (once published) to maritime
stakeholders and by marine information broadcasts. Below are the seven
specific questions posed in the comment:
(1) How far in advance of transit during the week of the Convention
must commercial, regular users of the security zone seek pre-approval
of such transit?
Pre-approval is defined as permission given prior to the start of
DNC security operations by the Captain of the Port Boston to transit
through a security zone. The process by which commercial entities could
gain pre-approval to transit DNC security zones began in September of
2003 when the USSS identified affected commercial operators and began
negotiations regarding potential waterway restrictions. Shortly
thereafter the Coast Guard Captain of the Port Boston joined in the
outreach effort and assisted the USSS in further identification of
affected commercial operators as the actual parameters of the proposed
security zones took shape. Information on proposed restrictions and
requests for affected commercial entities were provided at Boston Port
Operators Group meetings on February 18, March 17, and April 21, at two
specific industry stakeholder meetings on March 30 and 31, and a
harbormasters and salvors meeting on May 27, 2004. At this point, the
Coast Guard expects that any pre-approval requests should have already
been submitted to the USSS or the Coast Guard. Once the security zones
go into effect, only pre-approved transits and those requested due to
emergency situations will be allowed. We have revised the text of
paragraph (b)(2) or the regulation to clarify this point.
(2) How extensive will the pre-transit sweep by law enforcement be?
The pre-transit sweep will be as extensive as deemed necessary by
law enforcement presence for the safety and security of the port during
the Democratic National Convention.
(3) What is a ``commercial vessel'' for purposes of the regulation?
A commercial vessel is considered any vessel engaged in
``commercial service''. Commercial service includes any type of trade
or business involving the transportation of goods or individuals,
except service performed by a combatant vessel as stated in 46 U.S.C.
2101(5).
(4) What pattern of use constitutes a ``regular route'' for
purposes of the regulation?
A ``regular route'' for the purposes of this regulation means
transits that are based on a pre-set schedule which has been
established ahead of time, and where such transits have been occurring
in the specified areas as part of an ongoing business over the past
several months or years.
(5) What are the purposes of the pre-transit sweep?
The purpose of the pre-transit sweep is to ensure the safety and
security of the persons on board the vessel, law enforcement personnel,
and for the safety and security of the port.
(6) Upon what grounds, if any, could on-scene Coast Guard personnel
refuse passage rights to commercial users whose route was pre-approved
by the COTP?
Any act, behavior, or situation deemed unsafe or a threat to
security by on-scene law enforcement personnel who are authorized by
the COTP to enforce the safety and security zones could result in
refusal of passage.
(7) Is there any appeal procedure for those who apply in advance to
the
[[Page 43910]]
COTP for permission to pass through a security zone, but are denied
clearance?
Comments or correspondence may be directed to the office listed
under ADDRESSES and will be reviewed. However, the COTP has final
authority and the right to deny permission or revoke prior permission
when deemed necessary for the safety and security of the public or the
Boston COTP zone.
Regulatory Evaluation
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866 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 Homeland Security (DHS).
We expect the economic impact of this proposed rule to be minimal
enough that a full Regulatory Evaluation under the regulatory policies
and procedures of the DHS is unnecessary.
Although this proposed regulation will temporarily prevent traffic
from transiting a portion of the Charles River, Boston Inner Harbor and
surrounding certain VIP designated vessels during the specified
effective periods, the effects of this regulation will be minimized
based on several factors. Vessels that historically have conducted
daily business in the area of the Charles River security zone will be
allowed to transit, as long as transits have been prearranged as
discussed, thereby preventing disruption to their normal business. The
potential delays associated with vessels being swept and escorted
through the zone will be minimal. The Logan Airport DNC security zone
mirrors an existing state security zone, and therefore users of these
waters will not encounter restrictions significantly different from
those already in existence. The temporary security zones surrounding
VIP designated vessels are included in this rule as a precautionary
measure should they become necessary. At this time, no VIP designated
vessel security zones are scheduled. If they are deemed necessary
during the event and are subsequently enacted, these zones are limited
in scope, enough so that vessels may transit safely outside of the
zones and still make use of the waterway. Additionally, VIP designated
vessels will be advised to operate in such a manner as to avoid
restricting the main shipping channels from use by large commercial
vessels that require the depth of water to operate safely. Lastly,
advance notice to waterways users has been, and will continue to be,
made via outreach meetings, informational brochures, safety marine
information broadcasts, and local notice to mariners.
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 proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule would affect the following
entities, some of which may be small entities: the owners or operators
of vessels intending to transit or anchor in these security zones
during this event. However, this proposed rule will not have a
significant economic impact on a substantial number of small entities
due to: transit accommodations that are being made for regular
commercial operators within the Charles River and Logan Airport DNC
zones; the minimal time that vessels will be restricted from the area
of the zones; vessels being able to pass safely around the zones;
vessels having to wait only a short time for the VIP designated vessels
to pass if they cannot safely pass outside the zones; and the advance
notifications which will be made to the local maritime community by
marine information broadcasts.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. 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 Chief Petty Officer Daniel
Dugery Waterways Safety and Response. Marine Safety Office Boston,
(617) 223-3000.
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 affect 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
[[Page 43911]]
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,
which guides 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. A final ``Environmental Analysis Check List'' and a
final ``Categorical Exclusion Determination'' are available in the
docket where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Safety measures, Waterways.
0
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
0
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, and 160.5; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.T01-002 to read as follows:
Sec. 165.T01-002 Security Zones; Democratic National Convention,
Boston, MA.
(a) Location. The following areas are security zones:
(1) All navigable waters of the Charles River from the westernmost
portion of the Monsignor O'Brien Highway Bridge/Museum of Science
structure as the western boundary, to a line drawn across the Charles
River, 50 yards east and parallel to, the Charlestown Bridge, as the
eastern boundary.
(2) All waters between the mean high water line around the
perimeter of Logan International Airport and a line measured 250 feet
seaward of and parallel to the mean high water line.
(3) All navigable waters 50 yards around any designated Very
Important Person vessel carrying specified protectees during Democratic
National Convention activities, in the Captain of the Port Boston,
Massachusetts zone.
(b) Regulations. (1) Entry into or remaining in these zones is
prohibited unless authorized by the Coast Guard Captain of the Port,
Boston.
(2) Persons desiring to transit the area of the security zones may,
prior to the event, contact the Captain of the Port at telephone number
617-223-3000/5750 to request pre-approval. Persons with pre-approval
from the Captain of the Port should communicate with and verify on-
scene approval from the authorized on-scene patrol representative on
VHF channel 16 (156.8 MHz). If permission is granted, all persons and
vessels must comply with the instructions of the Captain of the Port or
his or her designated representative.
(3) All persons and vessels must comply with the instructions of
the Captain of the Port or the designated on-scene Coast Guard patrol
personnel. On-scene Coast Guard patrol personnel include commissioned,
warrant and petty officers of the Coast Guard on board Coast Guard
Auxiliary, and local, state and federal law enforcement vessels.
(4) The Captain of the Port or his or her designated representative
will notify the maritime community of periods during which these zones
will be enforced. The Captain of the Port or his or her designated
representative will identify designated Very Important Person vessel
transits by way of marine information broadcast. Emergency response
vessels are authorized to move within the zone, but must abide by
restrictions imposed by the Captain of the Port or his or her
designated representative.
(c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the
authority for this section includes 33 U.S.C. 1226.
(d) Enforcement period. This section will be enforced from:
(1) 12:01 a.m. e.d.t., on July 26, 2004, until 2 a.m. e.d.t., on
July 30, 2004, with respect to the Charles River Zone described in
paragraph (a)(1).
(2) 8 a.m. e.d.t., on July 24, 2004, until 10 p.m. e.d.t., on July
31, 2004, with respect to the Logan Airport Democratic National
Convention Zone described in paragraph (a)(2).
(3) 8 a.m. e.d.t., on July 24, 2004, until 10 p.m. e.d.t., on July
31, 2004, with respect to the moving security zones described in
paragraph (a)(3) around designated Very Important Person vessels
carrying specified protectees, as deemed necessary by the United States
Secret Service or U.S. Capitol Police, 15 minutes prior to and while
they are onboard the vessel.
Dated: July 15, 2004.
Brian M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 04-16829 Filed 7-20-04; 2:56 pm]
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