[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Rules and Regulations]
[Pages 75131-75134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31787]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-023]
RIN 1625-AA00


Safety and Security Zone; Cove Point Liquefied Natural Gas 
Terminal, Chesapeake Bay, MD

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising the established safety zone at the 
Cove Point Liquefied Natural Gas (LNG) Terminal. This is in response to 
the re-opening of the terminal by Dominion Corporation on July 25, 
2003. This safety and security zone is necessary to help ensure public 
safety and security. The zone will prohibit vessels and persons from 
entering a well-defined area around the Cove Point LNG Terminal.

DATES: This rule is effective January 29, 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 CGD05-03-023 and are 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: 

Regulatory Information

    On March 20, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety and Security Zone; Cove Point Liquefied 
Natural Gas Terminal, Chesapeake Bay, Maryland'' in the Federal 
Register [68 FR 13647]. We received five written comments on the 
proposed rule. On May 15, 2003, we published a notice of public meeting 
entitled ``Safety and Security Zone; Cove Point Liquefied Natural Gas 
Terminal, Chesapeake Bay, Maryland'' in the Federal Register [68 FR 
26247]. On June 5, 2003, a public meeting was held at the Holiday Inn, 
Solomons, Maryland. We received a total of 12 written comments and 12 
oral comments on the proposed rule.

Background and Purpose

    As a result of re-opening of the LNG terminal at Cove Point, MD, 
the Coast Guard has re-evaluated the safety zone established in 33 CFR 
165.502. This safety zone was established during the initial operation 
of the terminal in 1979 and includes both the terminal and associated 
LNG vessels. To better manage the safety and security of the LNG 
terminal, this rule incorporates necessary security provisions and 
changes the size of the existing safety zone. This rule establishes a 
combined safety zone and security zone for the LNG terminal at Cove 
Point.
    The President has continued the national emergencies he declared 
following the September 11, 2001 terrorist attacks [67 FR 58317 
(September 13, 2002) Continuing national emergency with respect to 
terrorist attacks], [67 FR 59447 (September 20, 2002) Continuing 
national emergency with respect to persons who commit, threaten to 
commit or support terrorism]. The President also has found pursuant to 
law, including the Act of June 15, 1917, as amended August 9, 1950, by 
the Magnuson Act (50 U.S.C. 191 et seq.), that the security of the 
United States is and continues to be endangered following the terrorist 
attacks [E.O. 13273, 67 FR 56215 (September 3, 2002) Security 
endangered by disturbances in international relations of U.S. and such 
disturbances continue to endanger such relations]. As such, there is an 
increased risk that subversive activity could be launched by vessels or 
persons in close proximity to the Cove Point LNG Terminal. 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 section 104 of the Maritime Transportation 
Security Act (MTSA) of November 25, 2002, and by 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

    The Coast Guard received 12 written comments and 12 oral comments 
on the proposed rule.
    Nine comments requested a reduction in the size of the proposed 
500-yard zone to 50 or 200 yards. Three comments approved of the size 
of the proposed 500-yard safety and security zone. One comment stated 
that the NPRM does not sufficiently address the need for such security 
provisions. The comment stated that the mere existence of an exclusion 
zone does ``absolutely nothing'' to further its stated goals, and the 
mere implementation of a zone does little to impede a ``would be'' 
terrorist. The commenter does not believe that the terminal is a 
terrorist target. The commenter further stated that 33 CFR part 6, the 
Maritime Transportation Security Act, the Magnuson Act, and the 
Espionage Act do not apply. The Coast Guard has determined (68 FR 
39249, July 1, 2003, Implementation of National Security Initiatives) 
that significant public benefit accrues if a transportation security 
incident, as defined in the MTSA, is avoided or the effects of a 
transportation security incident can be reduced.
    These public benefits include human lives saved, pollution avoided, 
and ``public'' infrastructure, such as national landmarks and 
utilities, protected. The safety and security zone serves the purpose 
of lowering the risk of a transportation security incident and 
therefore, is a necessary provision. LNG facilities have been 
determined to be at high risk for a transportation security incident 
and therefore are subject to such security and safety regulations.
    Six comments addressed the size of the zone as a question of 
balancing public access for fishing and the need for terminal security. 
Two comments emphasized the need for balance between fishing and 
security. Three comments stated that the existing 50-yard onshore/200 
yard offshore zone is sufficient for security and that fishing should 
be allowed when a vessel is not docked at the facility. One comment 
suggested moving the western border to 250 yards to provide fishing and 
crabbing opportunities along the 13-32 foot drop-off. The Coast Guard 
recognizes the need for balance between terminal security and access to 
the waterway for fishing and other uses. Since the terminal has not 
been in operation, the Coast Guard has not enforced the current zone 
under 33 CFR 165.502 [67 FR 70696, November 26, 2002, Safety Zone; Cove 
Point; Chesapeake Bay, MD, Notice of enforcement of regulation]. 
Recreational

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and commercial vessel operators have been using the area on a regular 
basis for fishing, passenger tours, and fishing parties.
    The reopening of the terminal warrants reevaluation of the current 
zone, and the increased risk of a transportation security incident 
warrants the enforcement of the security zone. The Coast Guard has 
evaluated and weighed the comments it has received regarding this 
security zone and has addressed the concerns of those who may be 
affected by it. The purpose of the safety zone is to protect the public 
from the hazards associated with the cryogenic liquid that is always 
present at the offshore terminal. The purpose of the security zone is 
to lower the risk of a potential transportation security incident. The 
Coast Guard believes that a 500-yard safety and security zone is the 
appropriate size to provide for both public safety and security of the 
terminal. In addition, the Coast Guard has coordinated its security 
evaluation with federal, State, and local agencies prior to the 
issuance of this rule.
    Five comments offered suggestions. Two comments requested that the 
local community, Coast Guard, and Dominion Corporation come up with an 
artificial reef somewhere nearby to replace the ``gas docks.'' Another 
comment stated that security can be managed by painting the charter 
fleet international orange and letting the charter fleet fish near the 
docks in the hope that they would defend the docks. Another comment 
stated that the Coast Guard or Dominion Corporation should provide 
notice of scheduled LNG vessel arrivals. Another comment suggested 
marking the zone with buoys. The Coast Guard appreciates these five 
suggestions, but considers them beyond the scope of this rulemaking.

Discussion of Changes in Rule

    The final rule remains the same as the rule we proposed in our NPRM 
with the exception of the elimination of the paragraph on authority. 
Since publication of the NPRM, the authorities citation for 33 CFR part 
165 has changed. This new authorities citation for the part eliminates 
the need to cite to 33 U.S.C. 1226 in Sec.  165.502. Therefore we have 
eliminated the authority paragraph and redesignated the enforcement 
paragraph as paragraph (c).

Regulatory Evaluation

    This 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).
    There will be adverse effects on members of the local maritime 
community that have been using the area as a fishing ground. Since the 
terminal has not been in operation, the Coast Guard has not enforced 
the current zone under 33 CFR 165.502 (see notice of enforcement, 67 FR 
70696, November 26, 2002). Recreational and commercial vessel operators 
have been using the area on a regular basis for recreational fishing, 
commercial fishing, passenger tours, and fishing parties. However, 
enforcement of the current zone would also prohibit these recreational 
and commercial vessel operators from using this area.
    Eleven comments addressed the potential economic impact of this 
rule on the local fishing industry. Three comments offered separate 
business cost estimates as a result of the implementation and 
enforcement of this exclusion zone. One commenter estimated that each 
year between May 15 and November 15, 70 boats per day fish at the ``gas 
docks.'' The commenter further estimated that implementation of this 
safety and security zone would result in an economic impact to the 
local economy of $1.986 million for his business alone, and a total 
economic impact of at least $9 million per year for all vessels fishing 
there. Additionally, the commenter estimated that a 500-yard zone would 
totally eliminate fishing around this popular fishing area. By closing 
this fishing area the commenter believes anglers will place undue 
fishing pressure on other fishing areas. Another comment cited the 
Maryland Department of Natural Resources figures that estimate the 
economic impact of the Cove Point LNG fishery to be $5-$10 million per 
year. A third comment stated that its business gets half its fishing 
income from fishing the ``gas docks.'' It is important to note that 
while this regulation does restrict activities at a specific location, 
similar activities can still take place outside of the zone and 
elsewhere throughout the Chesapeake Bay. As a result, this regulation 
may inconvenience some businesses, but this rule does not constitute a 
complete cessation of business. Businesses may continue to operate and 
fish in areas that are not within the safety and security zone. While 
this makes it difficult for the Coast Guard to accurately determine the 
level of impact that each business will face, it is unlikely that the 
cumulative economic impact of this restriction would reach the 
threshold of a ``significant regulatory action'' ($100,000,000 per 
year) and therefore a regulatory assessment is not necessary.

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 rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule will affect vessels intending to transit the area 
surrounding the Cove Point LNG facility. It will also affect anglers 
intending to fish in the area around the Cove Point LNG facility.
    Ten comments stated that this rule would have a significant impact 
on the local fishing community. Two comments stated that this rule 
would create an adverse economic impact on 100 small businesses in five 
surrounding counties. It is likely that this proposed rule would impact 
a substantial number of small entities; however, it is unlikely that 
they would be impacted significantly. Therefore, additional guidance to 
small businesses will not be necessary.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Act of 1996 (Pub. L. 104-121), we offered to assist small entities in 
understanding this rule so that they could better evaluate its effects 
on them and participate in the rulemaking process. This was 
accomplished by publishing a notice of proposed rulemaking outlining 
the Coast Guard's intentions and inviting comments regarding the rule's 
potential impact to small entities. Additionally, the Coast Guard held 
a public meeting where it invited owners of small entities to speak out 
and provide additional and amplifying information to the Coast Guard on 
the potential impact this rule may have on their small businesses.
    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

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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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.
    The Coast Guard received one comment concerning Unfunded Mandates. 
The comment stated that this rule is an Unfunded Mandate because the 
cost to the private sector will be millions of dollars. The Coast Guard 
has determined that there will be minimal impact on State, local, or 
tribal governments because representatives of State and local 
governments infrequently use this area. Furthermore, the impact on 
State and local governments will be minimal because state and local 
government representatives can be admitted to the safety and security 
zone after consultation with the Captain of the Port.

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 
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.

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 because this rule establishes a safety and security zone.
    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 
recordkeeping requirements, Security 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. 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.

0
2. Revise Sec.  165.502 to read as follows:


Sec.  165.502  Safety and Security Zone; Cove Point Liquefied Natural 
Gas Terminal, Chesapeake Bay, Maryland.

    (a) Location. The following area is a safety and security zone: All 
waters of the Chesapeake Bay, from surface to bottom, encompassed by 
lines connecting the following points, beginning at 38[deg]24'27'' N, 
76[deg]23'42'' W, thence to 38[deg]24'44'' N, 76[deg]23'11'' W, thence 
to 38[deg]23'55'' N, 76[deg]22'27'' W, thence to 38[deg]23'37'' N, 
76[deg]22'58'' W, thence to beginning at 38[deg]24'27'' N, 
76[deg]23'42'' W. These coordinates are based upon North American Datum 
(NAD) 1983. This area is 500 yards in all directions from the Cove 
Point LNG terminal structure.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec. Sec.  165.23 and 165.33 of this part, entry into or movement 
within this zone is prohibited unless authorized by the Coast Guard 
Captain of the Port, Baltimore, Maryland or his designated 
representative. Designated representatives include any Coast Guard 
commissioned, warrant, or petty officer.
    (2) Persons desiring to transit the area of the zone may contact 
the Captain of the Port at telephone number (410) 576-2693 or via VHF 
Marine Band Radio 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 Captain of the Port or his designated 
representative.
    (c) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, local, and private 
agencies.


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    Dated: December 15, 2003.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 03-31787 Filed 12-29-03; 8:45 am]
BILLING CODE 4910-15-P