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Proposed Rule

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

Document Details

Information about this document as published in the Federal Register.

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AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish new regulated navigation areas (RNAs) and safety and security zones for deepwater liquefied natural gas (LNG) ports in the Boston Captain of the Port (COTP) Zone, off the coast of Gloucester, Massachusetts. The proposed RNAs and safety and security zones are in waters around the Neptune Deepwater Port Facility (Neptune). They would protect vessels and mariners from the potential safety hazards associated with deepwater port operations, and protect liquefied natural gas carriers (LNGCs) and deepwater port infrastructure from security threats or other subversive acts, by prohibiting certain operations and imposing conditions on others.

DATES:

Comments and related material must be received by the Coast Guard on or before June 1, 2010.

ADDRESSES:

You may submit comments identified by docket number USCG-2009-0589 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: 202-493-2251.

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

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FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail LCDR Pamela Garcia, Coast Guard; telephone 617-223-3028; e-mail Pamela.P.Garcia@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

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SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0589), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can Start Printed Page 16371contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu, select “Proposed Rule” and insert “USC-2009-0589” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USC-2009-0589” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Background and Purpose

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 its two submerged turret loading buoys are: STL Buoy A, 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. Neptune can accommodate the mooring, connecting, and offloading of two liquefied natural gas carriers 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.

33 U.S.C. 1226, 1231; 50 U.S.C. 191; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1, 165.10, 165.11, 165.20, 165.30. Current regulations establishing RNAs, safety zones, and security zones for deepwater ports in the Boston COTP Zone appear at 33 CFR 165.110 and 165.117.

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 additional authority of the DPA, 33 U.S.C. 1509(a). 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 the Boston COTP Zone appear at 33 CFR 150.940(c).

Discussion of Proposed Rule

The Coast Guard proposes establishing RNAs around Neptune's STL buoys, 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 Neptune. The RNAs would prohibit vessels from anchoring or otherwise deploying equipment that could become entangled in submerged infrastructure within 1,000 meters of Neptune's STL buoys. The RNAs would also 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 RNAs would be prohibited without the permission of the COTP, and this prohibition would be extended to existing RNAs for the Northeast Gateway Deepwater Port (NEGDWP).

The Coast Guard also proposes placing safety and security zones within the corresponding RNAs. These would prohibit any person or vessel, other than an LNGC or support vessel (as defined in 33 CFR 148.5), from coming within 500 meters of Neptune's STL buoys. Because these safety zones affect anchorage at a deepwater port, the Coast Guard also proposes adding Neptune's safety zones to 33 CFR 150.940. The proposed amendment to that section would also provide details of IMO-approved NAAs and an ATBA affecting Neptune, which would be reflected on nautical charts. An IMO subcommittee gave preliminary approval to Neptune's NAAs and ATBA in July 2009, and we will not issue a final rule recognizing those NAAs and the ATBA until the IMO gives them final approval.

Finally, the Coast Guard proposes two amendments to 33 CFR 150.940(c)(4)(iii), which relates to safety zones for the Northeast Gateway Deepwater Port. These amendments would align the regulations for NEGDWP with those proposed for Neptune. The first would prohibit diving in NEGDWP's safety zones, without the permission of the COTP. The second would allow vessels to contact the COTP on VHF-FM Channel 16 (156.8 MHZ) as well as by telephone.Start Printed Page 16372

Regulatory Analyses

We developed this proposed 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 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.

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 would be implemented by this proposed 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 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.

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 STL buoys for Neptune. 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 Neptune'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 1,000 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, and vessels wishing to conduct diving operations may do so with the permission of the COTP.

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 rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Pamela Garcia at 617-223-3028, e-mail: Pamela.P.Garcia@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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 (adjusted for inflation) 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.

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.Start Printed Page 16373

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

Environment

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. This proposed 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. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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List of Subjects

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For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Parts 150 and 165 as follows:

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PART 150—DEEPWATER PORTS: OPERATIONS

1. The authority citation for Part 150 continues to read as follows:

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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).

End Authority

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

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 guidanceLatitude NLongitude W
(i) Starting at42°27′29″070°35′07″
(ii) A rhumb line to42°29′21″070°35′36″
(iii) Then an arc with a 1,250 meter radius centered at point42°29′12″070°36′30″
(iv) To a point42°29′06″070°37′24″
(v) Then a rhumb line to42°27′13″070°36′54″
(vi) Then an arc with a 1,250 meter radius centered at point42°27′20″070°36′07″
(vii) To the point of starting42°27′29″070°35′07″

(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 Start Printed Page 16374obtain 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.

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PART 165—WATERWAYS SAFETY; REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

3. The authority citation for part 165 continues to read as follows:

Start Authority

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.

End Authority

3. Amend § 165.117 by adding paragraph (a)(3)(ii) and revising paragraph (d)(1) to read as follows:

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

(a) * * *

(3) * * *

(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, 070°36′29.7″ W; and 42°27′20.5″ N, 070°36′07.3″ W.

* * * * *

(d) * * *

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

* * * * *
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Dated: March 14, 2010.

Joseph L. Nimmich,

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

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[FR Doc. 2010-7161 Filed 3-31-10; 8:45 am]

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