[Federal Register: December 27, 2002 (Volume 67, Number 249)]
[Proposed Rules]
[Page 79014-79017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de02-34]
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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]
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