[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Proposed Rules]
[Pages 79014-79017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32722]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP Los Angeles-Long Beach 02-005]
RIN 2115-AA97


Security Zones; Liquefied Hazardous Gas Tank Vessels San Pedro 
Bay, CA

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise current safety zone 
regulations by establishing security zones around and under all 
liquefied hazardous gas (LHG) tank vessels located on San Pedro Bay, 
California, in and near the ports of Los Angeles and Long Beach. These 
proposed security zones are needed for national security reasons to 
protect the public and ports from potential subversive acts. Entry into 
these zones will be prohibited unless specifically authorized by the 
Captain of the Port Los Angeles-Long Beach.

DATES: Comments and related material must reach the Coast Guard on or 
before February 7, 2003.

ADDRESSES: You may mail comments and related material to U.S. Coast 
Guard Marine Safety Office/Group Los Angeles-Long Beach, Waterways 
Management, 1001 S Seaside Avenue, Building 20, San Pedro, California, 
90731. Waterways Management 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 Waterways Management between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Rob Griffiths, 
Assistant Chief of Waterways Management, (310) 732-2020.

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 (COTP Los 
Angeles-Long Beach 02-005), 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 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.
    In our final rule, we will include a concise general statement of 
the comments received and identify any changes from the proposed rule 
based on the comments.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Waterways Management at the address 
under ADDRESSES explaining why one would be beneficial. If we determine 
that one 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

    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan and 
growing tensions in Iraq have made it prudent for U.S. ports to be on a 
higher state of alert because the al Qaeda organization and other 
similar organizations have declared an ongoing intention to conduct 
armed attacks on U.S. interests worldwide.
    In its effort to thwart terrorist activity, the Coast Guard has 
increased safety and security measures on U.S. ports and waterways. 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 and safety zones, to prevent or 
respond to acts of terrorism against individuals, vessels, or public or 
commercial structures. The Coast Guard also 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.
    In this particular rulemaking, to address the aforementioned 
security concerns and to take steps to prevent the catastrophic impact 
that a terrorist attack against a LHG tank vessel would have on the 
public interest, the Coast Guard proposes to revise current LHG safety 
zone regulations by establishing security zones around and under any 
LHG tank vessels entering, departing, or moored within the ports of Los 
Angeles and Long Beach. These proposed security zones will help the 
Coast Guard to prevent vessels or persons from engaging in terrorist 
actions against LHG tank vessels.
    Current regulations issued under 33 CFR 165.1151 provide for safety 
zones around LHG tank vessels that are anchored, moored, or underway 
near the Los Angeles-Long Beach port areas. However, these safety zones 
are inadequate to address increased security requirements for LHG tank 
vessels.
    On January 28, 2002, we published a temporary final rule (TFR) 
entitled ``Security Zones; San Pedro Bay, California'' in the Federal 
Register (67

[[Page 79015]]

FR 3814). In that rule, which expired on June 15, 2002, we temporarily 
replaced the LHG safety zones with security zones of a similar size and 
location.
    On June 19, 2002, we published a TFR entitled ``Security Zones; 
Liquefied Hazardous Gas Tank Vessels, San Pedro Bay, CA'' in the 
Federal Register (67 FR 41625). In that rule, which is set to expire on 
December 21, 2002, we continue to temporarily replace the safety zones 
with security zones for LHG tank vessels near Los Angeles-Long Beach. 
Although we had anticipated using the effective period of this TFR to 
engage in notice and comment rulemaking, the Captain of the Port will 
extend the effective period again to allow sufficient time to properly 
develop permanent regulations tailored to the present and foreseeable 
security environment. Accordingly, this rulemaking proposes to make 
permanent the temporary security zones established on June 11, 2002.

Discussion of Proposed Rule

    The Coast Guard proposes to revise 33 CFR 165.1151 by replacing the 
existing safety zones with moving and fixed security zones around any 
LHG tank vessels that are anchored, moored, or underway within the Los 
Angeles and Long Beach port areas. These proposed security zones will 
take effect upon the entry of any LHG tank vessel into the waters 
within 3 nautical miles outside of the Federal breakwaters encompassing 
San Pedro Bay and will remain in effect until the LHG tank vessel 
departs this 3 nautical mile regulatory limit. Section 104 of the 
Maritime Transportation Security Act (MTSA) of 2002 (Pub. L. 107-295, 
116 Stat. 2064) extended the geographical reach of the Magnuson Act to 
12 nautical miles seaward of the baseline of the United States and 
added civil penalty liability for violation. This proposed rule does 
not exercise the full extent of the geographical limit allowed by the 
PWSA and the recently amended Magnuson Act. The Coast Guard retains 
discretion to extend the geographical reach of this rule via notice and 
comment procedures to the 12 nautical mile limit should circumstances 
warrant such action.
    This proposed rule, for security concerns, prohibits entry of any 
vessels or persons inside the security zone surrounding any LHG tank 
vessel. These security zones are within a 500 yard radius around any 
LHG tank vessels that are anchored at a designated anchorage; within a 
500 yard radius around any LHG tank vessels that are moored, or in the 
process of mooring, at any berth within the Los Angeles or Long Beach 
port areas; and within 1000 yards ahead and 500 yards on each side and 
astern of any LHG tank vessels that are underway.
    These security zones are needed for national security reasons to 
protect LHG tank vessels, the public, transiting vessels, adjacent 
waterfront facilities, and the ports from potential subversive acts, 
accidents, or other events of a similar nature. Entry into these zones 
will be prohibited unless specifically authorized by the Captain of the 
Port or his designated representative. Vessels already moored or 
anchored when these security zones take effect are not required to get 
underway to avoid either the moving or fixed zones unless specifically 
ordered to do so by the Captain of the Port or his designated 
representative.
    Liquefied hazardous gas (LHG) as used in this section means a 
liquid containing one or more of the products listed in Table 127.005 
of this part that is carried in bulk on board a tank vessel as 
liquefied petroleum gas, liquefied natural gas, or similar liquefied 
gas products.
    Vessels or persons violating this section will be subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    Pursuant to 33 U.S.C. 1232 and 33 CFR part 27, any violation of the 
security zone described herein is punishable by civil penalties (not to 
exceed $27,500 per violation, where each day of a continuing violation 
is a separate violation), criminal penalties (imprisonment up to 6 
years and a maximum fine of $250,000), and in rem liability against the 
offending vessel and license sanctions. Any person who violates this 
section using a dangerous weapon or who engages in conduct that causes 
bodily injury or fear of imminent bodily injury to any officer 
authorized to enforce this regulation also faces imprisonment up to 12 
years.
    Vessels or persons violating this section are also subject to the 
penalties set forth in 50 U.S.C. 192: Seizure and forfeiture of the 
vessel to the United States; a maximum criminal fine of $10,000; 
imprisonment up to 10 years; and a civil penalty of not more than 
$25,000 for each day of a continuing violation.
    The Captain of the Port will enforce these zones and may request 
the use of the resources and personnel of other government agencies to 
assist in the patrol and enforcement of the proposed rule. The Captain 
of the Port retains discretion to initiate Coast Guard civil penalty 
action against non-compliant parties pursuant to the PWSA or the 
Magnuson Act, or, refer appropriate cases to the cognizant U.S. 
Attorney Office for disposition. This rule is proposed under the 
authority of 33 U.S.C. 1226 in addition to the authority contained in 
33 U.S.C. 1231.

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 
Transportation (DOT) (44 FR 11040, February 26, 1979).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT is unnecessary.
    The effect of this regulation will not be significant because the 
zones will encompass only a small portion of the waterway for a limited 
period of time. Furthermore, vessels will be able to pass safely around 
the zones and may be allowed to enter these zones on a case-by-case 
basis with permission of the Captain of the Port, or his designated 
representative.
    The sizes of the zones are the minimum necessary to provide 
adequate protection for the LHG tank vessels, their crews, cargo, other 
vessels operating in the vicinity of the LHG tank vessels and their 
crews, adjoining areas, and the public. The entities most likely to be 
affected are commercial vessels transiting the main ship channels of 
Los Angeles or Long Beach and pleasure craft engaged in recreational 
activities and sightseeing. These security zones will prohibit 
commercial vessels from meeting or overtaking any LHG tank vessels in 
the main ship channels, effectively prohibiting use of the channels. 
However, the moving security zones will only be effective during LHG 
tank vessel transits, which last for approximately 30 minutes. Most 
vessels will be able to safely transit around these zones while a LHG 
tank vessel is moored or at anchor in the Ports of Los Angeles and Long 
Beach.

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

[[Page 79016]]

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. We expect this proposed rule may affect the 
following entities, some of which may be small entities: The owners and 
operators of private and commercial vessels intending to transit or 
anchor in these small portions of the ports of Los Angeles and Long 
Beach near LHG tank vessels covered by these security zones. The impact 
to these entities would not, however, be significant since these zones 
are proposed to encompass only small portions of the waterway for 
limited periods of time while the LHG tank vessels are transiting, 
moored, or in the anchorage. Delays, if any, are expected to be less 
than thirty minutes in duration.
    Small vessel traffic can pass safely around the area and vessels 
engaged in recreational activities, sightseeing, and commercial fishing 
have ample space outside of the security zone to engage in these 
activities. When LHG tank vessels are at anchor, vessel traffic will 
have ample room to maneuver around the security zone. The outbound or 
inbound transit of a LHG tank vessel will last about 30 minutes. 
Although this proposed regulation would prohibit simultaneous use of 
portions of the channel, this prohibition is of a short duration. And 
while a LHG tank vessel is moored, commercial traffic and small 
recreational traffic will have an opportunity to coordinate movement 
through the security zone with the COTP or his or her designated 
representative.
    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 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact the person 
indicated in FOR FURTHER INFORMATION CONTACT.

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 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 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. To 
help the Coast Guard establish regular and meaningful consultation and 
collaboration with Indian and Alaskan Native Tribes, on July 11, 2002, 
we published a notice in the Federal Register (66 FR 36361) requesting 
comments on how to best carry out the order. 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. 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 proposed 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 because we are proposing to establish 
security zones. A ``Categorical Exclusion Determination'' is available 
in the docket where indicated under ADDRESSES.

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:


[[Page 79017]]


    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; 49 CFR 1.46.

    2. Revise Sec.  165.1151 to read as follows:


Sec.  165.1151  Security Zones; Liquefied Hazardous Gas Tank Vessels, 
San Pedro Bay, California

    (a) Definition. ``Liquefied Hazardous Gas'' as used in this section 
means a liquid containing one or more of the products listed in Table 
127.005 of this part that is carried in bulk on board a tank vessel as 
liquefied petroleum gas, liquefied natural gas, or similar liquefied 
gas products.
    (b) Location. The following areas are security zones:
    (1) All waters, extending from the surface to the sea floor, within 
a 500 yard radius around any liquefied hazardous gas (LHG) tank vessel 
that is anchored at a designated anchorage either inside the Federal 
breakwaters bounding San Pedro Bay or outside at designated anchorages 
within 3 nautical miles of the breakwater;
    (2) The shore area and all waters, extending from the surface to 
the sea floor, within a 500 yard radius around any LHG tank vessel that 
is moored, or in the process of mooring, at any berth within the Los 
Angeles or Long Beach port areas inside the Federal breakwaters 
bounding San Pedro Bay;
    (3) All waters, extending from the surface to the sea floor, within 
1000 yards ahead and 500 yards on each side and astern of any LHG tank 
vessel that is underway either on the waters inside the Federal 
breakwaters bounding San Pedro Bay or on the waters within 3 nautical 
miles seaward of the Federal breakwaters.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into or remaining in these zones is 
prohibited unless authorized by the Coast Guard Captain of the Port Los 
Angeles-Long Beach, or his or her designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number (800) 221-USCG 
(8724) or on VHF-FM channel 16 (156.8 MHz) to seek permission to 
transit the area. If permission is granted, all persons and vessels 
shall comply with the instructions of the Captain of the Port or his or 
her designated representative.
    (3) When any LHG tank vessels approach within 500 yards of a vessel 
that is moored or anchored, the stationary vessel must stay moored or 
anchored while it remains within the LHG tank vessel's security zone 
unless it is either ordered by or given permission from the Captain of 
the Port Los Angeles-Long Beach to do otherwise.
    (d) 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.
    (e) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of these security zones by the Los Angeles Port Police 
and the Long Beach Police Department.

    Dated: November 26, 2002.
J.M. Holmes,
Captain, Coast Guard, Captain of the Port, Los Angeles-Long Beach.
[FR Doc. 02-32722 Filed 12-26-02; 8:45 am]
BILLING CODE 4910-15-P