[Federal Register: December 31, 2002 (Volume 67, Number 251)]
[Rules and Regulations]
[Page 79854-79856]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de02-10]
[[Page 79854]]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 02-019]
RIN 2115-AA97
Security Zones; San Francisco Bay, CA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard has established moving and fixed security
zones extending 100 yards around and under all cruise ships and tank
vessels that enter, are moored in, anchored in, or depart from the San
Francisco Bay, California and Delta ports. These security zones are
needed for national security reasons to protect the public and ports
from potential terrorist acts. Entry into these zones is prohibited
unless specifically authorized by the Captain of the Port San Francisco
Bay.
DATES: This final rule is effective December 21, 2002.
ADDRESSES: Documents as indicated in this preamble are available for
inspection or copying at U.S. Coast Guard Marine Safety Office San
Francisco Bay, Waterways Management Branch, Coast Guard Island,
Alameda, California 94501, between 9 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Diana Cranston, Chief,
Waterways Management Branch U.S. Coast Guard Marine Safety Office San
Francisco Bay, 510-437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On October 30, 2002, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zones; San Francisco Bay, California'' in
the Federal Register (67 FR 66086). We received no letters on the
proposed rule. No public hearing was requested, and none was held.
On December 21, 2001, we issued a rule under COTP San Francisco Bay
01-012, and published that rule in the Federal Register (67 FR 7611,
February 20, 2002) creating temporary section 165.T11-098 of Title 33
of the Code of Federal Regulations (CFR). Under temporary section
165.T11-098, which expired at 11:59 p.m. PDT on June 21, 2002, the
Coast Guard established 100-yard security zones around all cruise ships
and tank vessels that entered, were moored in, or departed from the San
Francisco Bay and Delta ports.
On June 12, 2002, a change in effective period temporary rule was
issued, under docket COTP San Francisco bay 02-012 and was published in
the Federal Register (67 FR 42486, June 24, 2002), under the same
previous temporary section 165.T11-098, which is set to expire at 11:59
p.m. on December 21, 2002. The Captain of the Port has determined the
need for continued security regulations exits. Accordingly, this final
rule creates a permanent regulation for security zones in the same
locations covered by the temporary final rule published on February 20,
2002 (67 FR 7611) which was later extended by another rule published in
the Federal Register on June 24, 2002 (67 FR 42486).
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register because the threat of maritime
attacks is real as evidenced by the attack of a tanker vessel off the
coast of Yemen and the continuing threat to U.S. assets as described in
the President's finding in Executive Order 13273 of August 21, 2002 (67
FR 56215, September 3, 2002) that the security of the U.S. is
endangered by the September 11, 2001 attacks and that such disturbances
continue to endanger the international relations of the U.S. See also
Continuation of the National Emergency with Respect to Certain
Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of
the National Emergency with Respect to Persons Who Commit, Threaten To
Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002).
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag
and Effective U.S. Controlled Vessels and other Maritime Interests,
detailing the current threat of attack, MARAD 02-07 (October 10, 2002).
The current temporary rule is set to expire December 21, 2002, and any
delay in the effective date of this final rule is impractical and
contrary to the public interest.
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.) 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 cruise ship and/or tank vessel would
have on the public interest, the Coast Guard is establishing permanent
security zones around and under cruise ships and tank vessels entering,
departing, or moored or anchored within the San Francisco Bay and Delta
ports. These security zones help the Coast Guard to prevent vessels or
persons from engaging in terrorist actions against cruise ships and
tank vessels. Due to these heightened security concerns, and the
catastrophic impact a terrorist attack on a cruise ship and/or tank
vessel would have on the multiple passengers on board and surrounding
area and communities, security zones are prudent for these types of
vessels.
Discussion of Comments and Changes
We received no letters commenting on the proposed rule. No public
hearing was requested, and none was held. Therefore, we have made no
changes and will implement the provisions of the proposed rule as
written.
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
[[Page 79855]]
the Department of Transportation (DOT) (44 FR 11040, February 26,
1979).
Although this regulation restricts access to the zones, the effect
of this regulation will not be significant because: (i) The zones will
encompass only a small portion of the waterway; (ii) vessels will be
able to pass safely around the zones; (iii) vessels 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; and (iv) vessels
are able to safely transit around the zones while a vessel is moored or
at anchor in the San Francisco Bay and Delta ports.
The sizes of the zones are the minimum necessary to provide
adequate protection for the cruise ships and laden tank vessels, their
crews and passengers, other vessels operating in the vicinity of the
cruise ships and laden taken ships and their crews, adjoining areas,
and the public. The entities most likely to be affected are commercial
vessels transiting the main ship channel en route the San Francisco Bay
and Delta ports and pleasure craft engaged in recreational activities
and sightseeing. The security zones will prohibit any commercial
vessels from meeting or overtaking a cruise ship and/or a tank ship in
the main ship channels, effectively prohibiting use of the channels.
However, the moving security zones will only be effective during cruise
ship and tank ship transits, which will last for approximately 30
minutes.
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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they can 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 Agricultural 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 would 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 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 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 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.
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. 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 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 establishing a 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 amends
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. 165.1183 to read as follows:
[[Page 79856]]
Sec. 165.1183 Security Zones; Cruise Ships and Tank Vessels, San
Francisco Bay and Delta ports, California.
(a) Definition. ``Cruise ship'' as used in this section means a
passenger vessel, except for a ferry, over 100 feet in length,
authorized to carry more than 12 passengers for hire; making voyages
lasting more than 24 hours, any part of which is on the high seas; and
for which passengers are embarked or disembarked in the San Francisco
Bay and Delta ports.
(b) Location. The following areas are security zones:
(1) All waters, extending from the surface to the sea floor, within
a 100-yard radius around any cruise ship and tank ship that is anchored
at a designated anchorage within the San Francisco Bay and Delta port
areas shoreward of the line drawn between San Francisco Main Ship
Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37[deg]46.9' N,
122[deg]35.4' W and 37[deg]46. 5' N, 122[deg]35.2' W, respectively);
(2) The shore area and all waters, extending from the surface to
the sea floor, within a 100-yard radius around any cruise ship and tank
ship that is moored, or in the process of mooring, at any berth within
the San Francisco Bay and Delta port areas shoreward of the line drawn
between San Francisco Main Ship Channel buoys 7 and 8 (LLNR 4190 &
4195, positions 37[deg]46.9' N, 122[deg]35.4' W and 37[deg]46. 5' N,
122[deg]35.2' W, respectively); and
(3) All waters, extending from the surface to the sea floor within
a 100-yard radius around any cruise ship and/or tank ship that is
underway shoreward of the line drawn between San Francisco Main Ship
Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37[deg]46.9' N,
122[deg]35.4' W and 37[deg]46. 5' N, 122[deg]35.2' W, respectively).
(c) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into or remaining in this zone is
prohibited unless authorized by the Coast Guard Captain of the Port,
San Francisco Bay, or his designated representative.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port at telephone number 510-437-3073 or on
VHF-FM 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 or her designated
representative.
(3) When a cruise ship and/or tank vessel approaches within 100
yards of a vessel that is moored, or anchored, the stationary vessel
must stay moored or anchored while it remains within the cruise ship's
and/or tank vessel's security zone unless it is either ordered by, or
given permission from, the COTP San Francisco Bay to do otherwise.
(d) Authority. In addition to 33 U.S.C. 1231, 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 the security zone by local law enforcement as
necessary.
Dated: December 20, 2002.
G.M. Swanson,
Captain, Coast Guard, Captain of the Port, San Francisco Bay.
[FR Doc. 02-33018 Filed 12-30-02; 8:45 am]
BILLING CODE 4910-15-U