[Federal Register: March 31, 2004 (Volume 69, Number 62)]
[Proposed Rules]
[Page 16860-16862]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr04-34]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-04-017]
RIN 1625-AA00
Safety and Security Zones; Boston Harbor, MA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to remove the safety and security
zones around the Pacific Gas and Electric (PG & E) Power Plant Terminal
Wharf, Salem, Massachusetts, because the Captain of the Port Boston has
determined that these zones are no longer needed. If this proposed rule
is adopted as final, those seeking to enter these waters in Salem
Harbor around the PG & E facility would no longer need to seek
permission of the Captain of the Port.
[[Page 16861]]
DATES: Comments and related material must reach the Coast Guard on or
before June 1, 2004.
ADDRESSES: You may mail comments and related material to Marine Safety
Office (MSO) Boston, 455 Commercial Street, Boston, Massachusetts
02109. MSO Boston maintains the public docket for this rulemaking.
Comments and material received from the public, as well as documents
indicated in this preamble as being available in the docket, will
become part of this docket and will be available for inspection or
copying at MSO Boston 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:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD01-04-
017), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to Marine Safety Office Boston at the
address under ADDRESSES explaining why one would be beneficial. If we
determine that a public meeting would aid this rulemaking, we will hold
one at a time and place announced by a separate notice in the Federal
Register.
Background and Purpose
As a result of the terrorist attacks on the World Trade Center and
Washington, DC, on September 11, 2001, several security measures were
enacted to protect vessels and facilities throughout the Captain of the
Port Boston zone. On July 11, 2002, a final rule was published in the
Federal Register (67 FR 45909) creating several permanent safety and
security zones in Boston and Salem Harbors under 33 CFR 165.116. One
element of this regulation included the creation of safety and security
zones around the Pacific Gas and Electric (PG & E) Power Plant Terminal
in Salem, Massachusetts (33 CFR 165.116(a)(3)).
These zones were created to safeguard the facility, persons at the
facility, and the public and surrounding communities from sabotage or
other subversive acts, accidents, or other events of a similar nature.
Aside from protecting the facility and vessels from the new general
terrorist threat, reasons for creating these zones in this location
included historical occurrences of hostile protesters attempting to
gain access to the facility. Since the publication of this regulation,
however, the risk environment is better defined, and other security
measures have been enacted, both of which support eliminating the
permanent safety and security zones.
Despite initial concerns, the Coast Guard has found it unnecessary
to continuously enforce these zones since their inception. With respect
to the threat, there is no current specific threat to the PG & E
terminal nor to ships destined there. Additionally, there have been no
recent instances of protesters or other violent acts in that area. The
risk that the vessels themselves pose to the terminal or surrounding
area is relatively low, due to the non-volatile/non-explosive nature of
their heavy fuel oil or coal cargoes. Lastly, under the Maritime
Transportation Act of 2002 regulations, PG & E is required to institute
terminal security procedures, which include preventing unauthorized
access onto the facility from the waterside.
Since the expectation for permanent safety and security zones is
that they will be enforced on a regular basis, the presence of these
zones requires the expenditure of scarce Coast Guard resources. The
relatively low risk posed and the experience over the past 2 years, as
discussed above, support elimination of the permanent zones. In the
event of a change to the threat environment, the Captain of the Port
can quickly establish a temporary security zone to protect the PG & E
terminal and/or associated vessels.
Discussion of Proposed Rule
This proposed rule would amend 33 CFR 165.116 by removing paragraph
(a)(3) which describes 250-yard safety and security zones around the
PG&E Power Plant Terminal Wharf, Salem, Massachusetts. The remaining
zones in Sec. 165.116--Reserved Channel, Boston Harbor and Boston
Inner Harbor--would remain in effect and unchanged. Our proposed rule
also removes paragraph (b), Effective date, because it is not needed.
Regulatory Evaluation
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order. It is not ``significant''
under the regulatory policies and procedures of the Department of
Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary. This proposed rule will not
create a safety and security zone, but instead will remove an existing
security zone thereby removing any perceived impediment to the maritime
public.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
[[Page 16862]]
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact Chief Petty
Officer Daniel Dugery, Waterways Safety and Response Division, Marine
Safety Office Boston, at (617) 223-3000.
Collection of Information
This proposed rule would call 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 proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed 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 proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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. We
invite your comments on how this proposed rule might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
Energy Effects
We have analyzed this proposed 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.
Environment
We have analyzed this proposed rule under Commandant Instruction
M16475.1D, 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 draft ``Environmental Analysis Check List'' and a
draft ``Categorical Exclusion Determination'' (CED) are available in
the docket where indicated under ADDRESSES. Comments on this section
will be considered before we make the final decision on whether the
rule should be categorically excluded from further environmental
review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
2. Revise Sec. 165.116 to read as follows:
Sec. 165.116 Safety and Security Zones: Boston Harbor, Massachusetts.
(a) Location. The following areas are permanent safety and security
zones:
(1) Reserved Channel, Boston Harbor. All waters of Boston Harbor
within one hundred fifty (150) yards off the bow and stern and one
hundred (100) yards abeam of any vessel moored at the Massachusetts
Port Authority Black Falcon Terminal;
(2) Boston Inner Harbor. All waters of Boston Harbor within one
hundred (100) feet of the Coast Guard Integrated Support Command (ISC)
Boston piers.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 and Sec. 165.33 of this part, entry into or movement
within these zones is prohibited unless authorized by the Captain of
the Port Boston.
(2) All vessel operators shall comply with the instructions of the
COTP or the designated on-scene U.S. Coast Guard patrol personnel. On-
scene Coast Guard patrol personnel include commissioned, warrant, and
petty officers of the Coast Guard on board Coast Guard, Coast Guard
Auxiliary, local, state, and federal law enforcement vessels.
(3) No person may enter the waters or land area within the
boundaries of the safety and security zones unless previously
authorized by the Captain of the Port, Boston or his authorized patrol
representative.
Dated: March 8, 2004.
Brian M. Salerno,
Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts.
[FR Doc. 04-7109 Filed 3-30-04; 8:45 am]
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