[Federal Register: December 30, 2003 (Volume 68, Number 249)]
[Rules and Regulations]
[Page 75131-75134]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de03-12]
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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
[[Page 75132]]
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
[[Page 75133]]
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.
[[Page 75134]]
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