[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Rules and Regulations]
[Pages 75134-75136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31788]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-03-204]
RIN 1625-AA00


Safety/Security Zone; Cove Point Liquefied Natural Gas Terminal, 
Chesapeake Bay, Maryland

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety/security zone at the 
Cove Point Liquefied Natural Gas (LNG) Terminal. This is in response to 
the re-opening of the terminal by Dominion Power in July 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 of 500 yards in all directions around the Cove Point 
LNG Terminal.

DATES: This rule is effective from January 6, 2004, through January 28, 
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 [CGD05-03-204] 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) in the Federal Register entitled ``Safety and Security Zone; 
Cove Point Liquefied Natural Gas Terminal, Chesapeake Bay, Maryland'' 
(68 FR 13647). In it we proposed a permanent safety and security zone. 
And in response to a request for a public meeting, we announced a June 
5, 2003 public meeting and reopened the comment period to June 12, 
2003. (68 FR 26247, May 15, 2003). On August 1, 2003, we published a 
temporary final rule (TFR) entitled ``Safety and Security Zone; Cove 
Point Natural Gas Terminal, Chesapeake Bay, MD,'' in the Federal 
Register (68 FR 45165), that expired on September 26, 2003. On 
September 26, 2003, we issued a TFR entitled ``Safety/Security Zone; 
Cove Point Natural Gas Terminal, Chesapeake Bay, MD,'' and published 
this TFR in the Federal Register on October 16, 2003 (68 FR 59538). 
That temporary final rule will expire January 5, 2004. The final rule 
is being published elsewhere in this same issue of the Federal Register 
and will become effective January 29, 2004.
    Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause 
exists for not publishing a notice of proposed rulemaking and under 5 
U.S.C. 553(d)(3) for making this rule effective less than 30 days after 
publication in the Federal Register. It took longer to resolve issues 
related to the final rule than we expected at the time we issued the 
last TFR. This new TFR is necessary because it would be contrary to 
public interest not to maintain a temporary safety and security zone 
until the final rule becomes effective January 29, 2004, at which time 
this temporary rule will be removed.

Background and Purpose

    In preparation for the re-opening of the LNG terminal at Cove 
Point, MD, the Coast Guard is evaluating the current 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 vessels. To better manage the safety and 
security of the LNG terminal, this proposed rule incorporates necessary 
security provisions and changes the size of the zone. This rule 
establishes a 500 yard combined safety zone and security zone in all 
directions around the LNG terminal at Cove Point.
    Based on the September 11, 2001 terrorist attacks on the World 
Trade Center buildings in New York, NY and the Pentagon building in 
Arlington, VA, 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 
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 subparts 
6.01 and 6.04 of part 6 of Title 33 of the Code of Federal Regulations.

Discussion of Rule

    This temporary final rule is identical to the previous rules 
published in the Federal Register on August 1, 2003 (68 FR 45165), and 
October 16, 2003 (68 FR 59538). The Coast Guard was unable to publish 
an extension to this rule. However, the practical effect of this new 
temporary final rule is the same and continues the safety and security 
zone currently in effect.
    The Coast Guard is establishing a temporary safety/security zone on 
specified waters of the Chesapeake Bay near the Cove Point Liquefied 
Natural Gas Terminal to reduce the potential threat that may be posed 
by vessels or persons that approach the terminal. The zone will extend 
500 yards in all directions from the terminal. The effect will be to 
prohibit vessels or persons entry into the security zone, unless 
specifically authorized by the Captain of the Port, Baltimore, 
Maryland. Federal, state and local agencies may assist the Coast Guard 
in the enforcement of this rule.

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). This regulation is of limited size, and vessels may 
transit around the zone.
    There may be some adverse effects on the local maritime community 
that has 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. Commercial vessel operators have been using 
the area on a regular

[[Page 75135]]

basis for commercial fishing, passenger tours, and fishing parties. 
Enforcement of the proposed zone or the current zone would prohibit 
these commercial vessel operators from using this area.

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 proposed rule would affect the following entities, some 
of which might be small entities: The owners or operators of vessels 
intending to transit or anchor in a portion of the Chesapeake Bay near 
the Cove Point LNG Terminal.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.
    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 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 an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

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 security zone.
    A final ``Categorical Exclusion Determination'' will be available 
in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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. From January 6, 2004, through February 4, 2004, add Sec.  165.T05-
204 to read as follows:


Sec.  165.T05-204  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, 
076[deg]23'42'' W, thence to 38[deg]24'44'' N, 076[deg]23'11'' W, 
thence to 38[deg]23'55'' N, 076[deg]22'27'' W, thence to 38[deg]23'37'' 
N, 076[deg]22'58'' W, thence to beginning at 38[deg]24'27'' N, 
076[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

[[Page 75136]]

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.

    Dated: December 15, 2003.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 03-31788 Filed 12-29-03; 8:45 am]
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