[Federal Register Volume 68, Number 54 (Thursday, March 20, 2003)]
[Proposed Rules]
[Pages 13649-13652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6633]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-008]
RIN 1625-AA00


Safety and Security Zones; Chesapeake Bay, Maryland and 
Tributaries

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes establishing moving and fixed safety/
security zones on the waters of the Chesapeake Bay and it tributaries 
for cruise ships and vessels carrying Certain Dangerous Cargo (CDC), 
Liquefied Natural Gas (LNG), or Liquefied Hazardous Gas (LHG) in the 
Captain of the Port (COTP) Baltimore zone. These zones are necessary to 
provide for the safety and security of these vessels in response to 
potential terrorist acts. This rule is necessary to enhance the public 
and maritime safety and security by requiring vessel traffic to 
maintain a safe distance from these vessels while they are transiting, 
anchored, or moored in the COTP Baltimore zone.

DATES: Comments and related material must reach the Coast Guard on or 
before April 21, 2003.

ADDRESSES: You may mail comments and related material to Commander, 
U.S. Coast Guard Activities, 2401 Hawkins Point Road, Building 70, Port 
Safety, Security and Waterways Management Branch, Baltimore, Maryland, 
21226-1791. The Port Safety, Security and Waterways Management Branch 
of Coast Guard Activities Baltimore 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 Commander, U.S. Coast Guard Activities, 2401 
Hawkins Point Road, Building 70, Port Safety, Security and Waterways 
Management Branch, Baltimore, Maryland, 21226-1791, between 9 a.m. and 
3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Dulani Woods, at Coast 
Guard Activities Baltimore, Port Safety, Security and Waterways 
Management Branch, at telephone number (410) 576-2513.

SUPPLEMENTARY INFORMATION: 

[[Page 13650]]

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 [CGD05-03-
008], 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 Commander, U.S. Coast Guard 
Activities Baltimore 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

    In light of the terrorist attacks on the World Trade Center 
buildings in New York, NY and the Pentagon in Arlington, VA on 
September 11, 2001, safety and security zones are being established to 
safeguard certain types of vessels and the public from sabotage or 
other subversive acts, accidents, or other events of a similar nature, 
and to protect persons, vessels, and others in the maritime community 
from the hazards associated with the transit and limited 
maneuverability of these vessels. These safety and security zones 
prohibit entry into or movement within the specified areas.
    This rule proposes to establish safety and security zones around 
cruise ships and vessels carrying CDC, LNG, or LHG while underway, 
anchored, or moored in the waters of the Chesapeake Bay and its 
tributaries. This rule creates safety and security zones within 
navigable waters of the United States in the COTP Baltimore zone, as 
defined in 33 CFR 3.25-15. While the COTP anticipates some impact on 
vessel traffic due to this regulation, these safety and security zones 
are deemed necessary for the protection of life, property, and the 
safety and security of navigation within the COTP Baltimore zone.

Discussion of Proposed Rule

    In its effort to thwart terrorist activity, the Coast Guard has 
increased safety and security measures in 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 Espionage Act of June 15, 1917, as 
amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) 
(``Magnuson Act''), section 104 of the Maritime Transportation Security 
Act of November 25, 2002, and by implementing regulations promulgated 
by the President in 33 CFR 6.01 and 6.04.
    In this particular rulemaking, to address the aforementioned 
security concerns and take steps to prevent the catastrophic impacts 
that a terrorist attack against cruise ships and vessels carrying CDC, 
LNG, or LHG would have on the public interest, the Coast Guard proposes 
establishing safety and security zones around and under these vessels 
while transiting, anchored, or moored within the COTP Baltimore zone. 
These safety and security zones will help the Coast Guard prevent other 
vessels or persons from engaging in terrorist actions against these 
vessels. The Coast Guard believes the establishment of safety and 
security zones is prudent for the following reasons:
    (1) Cruise Ships. These are vessels of at least 100 gross tons 
defined as ``passenger vessel'' in 46 U.S.C. 2101 (22) that typically 
carry 500 or more passengers. The establishment of safety and security 
zones will increase the protection afforded these vessels.
    (2) Vessels Carrying CDC. Under 33 CFR 160 these cargoes include 
division 1.1 and 1.2 explosives, permitted oxidizing material or 
blasting agents, highway route controlled or fissile radioactive 
material, poisonous gases, and other toxic or volatile materials. By 
the nature of these materials, an explosion or release of this type of 
cargo could have serious impact on the general public.
    (3) LHG and LNG Vessels. LHG and LNG vessels carry highly toxic 
and/or flammable gases in large quantities as cargo. By the nature of 
these materials, a release of this type of cargo could have a serious 
impact on the general public.
    The proposed safety and security zones surrounding each type of 
vessel will control the movement of persons and other vessels from the 
surface to the bottom in a 500 yard radius. All vessels and persons 
will be prohibited from entering the zone without permission from the 
COTP Baltimore or his or her designated representative. The COTP shall 
notify the general public by marine information broadcast of the 
activation of these zones. Federal, State, local, and private agencies 
may assist the Coast Guard in the enforcement of this rule.

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. This finding 
is based on the limited size of the zones, the minimal time that 
vessels will be restricted from the zones, and vessels may transit 
around the zones. In addition, vessels that may need to enter the zones 
may request permission on a case by case basis from the COTP Baltimore 
or his designated representatives.

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 proposed rule would affect the following 
entities, some of which might be small entities: the owners or 
operators of vessels intending to transit in a portion of the 
Chesapeake Bay and its tributaries near a vessel encompassed by the 
safety and security zones.

[[Page 13651]]

    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 Lieutenant Dulani 
Woods, at Coast Guard Activities Baltimore, Port Safety, Security and 
Waterways Management Branch, at telephone number (410) 576-2513.

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 
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. 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 this rule establishes a safety and 
security zone. 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:

    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. Add Sec.  165.500 to read as follows:


Sec.  165.500  Safety and Security Zones; Chesapeake Bay, Maryland.

    (a) Definitions. (1) Certain Dangerous Cargo (CDC) means a material 
defined in 33 CFR part 160.
    (2) Liquefied Hazardous Gas (LHG) means a material defined in 33 
CFR part 127.
    (3) Liquefied Natural Gas (LNG) means a material defined in 33 CFR 
part 127.
    (4) Cruise ship means a vessel defined as a ``passenger vessel'' in 
46 U.S.C. 2101 (22).
    (b) Location. The following areas are safety and security zones: 
All waters of the Chesapeake Bay and its tributaries, from surface to 
bottom, within a 500 yard radius around cruise ships and vessels 
transporting CDC, LNG, or LHG while transiting, anchored, or moored 
within the COTP Baltimore zone.
    (c) Regulations. (1) The COTP will notify the maritime community of 
periods during which the safety and security zones will be enforced by 
providing notice in accordance with 33 CFR 165.7.
    (2) Entry into or remaining in this zone is prohibited unless 
authorized by the Coast Guard COTP, Baltimore, Maryland or his 
designated representative.
    (3) Persons desiring to transit the area of the security zone may 
contact the COTP at telephone number 410-576-2693 or on VHF channel 16 
(156.8 MHz) to seek permission to transit the area. If permission is 
granted, all persons and vessels must comply with the instructions of 
the COTP or his or her designated representative.
    (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.


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    Dated: February 26, 2003.
Evan Q. Kahler,
Commander, U.S. Coast Guard, Acting Captain of the Port, Baltimore, 
Maryland.
[FR Doc. 03-6633 Filed 3-19-03; 8:45 am]
BILLING CODE 4910-15-P