[Federal Register: May 30, 2003 (Volume 68, Number 104)]
[Rules and Regulations]
[Page 32368-32371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my03-14]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-002]
RIN 1625-AA00
Security Zones; San Francisco Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule; change in effective period.
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SUMMARY: The Coast Guard is revising the effective period of moving and
fixed security zones extending 100 yards around and under all High
Interest Vessels (HIVs) that enter, are moored in, anchored in or
depart from the San Francisco Bay and Delta ports, California. These
security zones are
[[Page 32369]]
needed for national security reasons to protect the public and ports
from potential subversive acts. Entry into these security zones is
prohibited, unless specifically authorized by the Captain of the Port
San Francisco Bay, or his designated representative.
DATES: The amendment to Sec. 165.T11-077(f) in this rule is effective
May 30, 2003. Section 165.T11-077, added at 68 FR 9003, February 27,
2003, effective from 11:59 p.m. PST on February 10, 2003, to 11:59 p.m.
PDT on May 31, 2003, as amended in this rule, is extended in effect to
11:59 p.m. PDT on September 30, 2003.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket [COTP San Francisco Bay 03-002] and are
available for inspection or copying at Coast Guard Marine Safety Office
San Francisco Bay, 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 Doug Ebbers, Waterways
Branch U.S. Coast Guard Marine Safety Office San Francisco Bay, at
(510) 437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On February 27, 2003, we published a temporary final rule (TFR) for
High Interest Vessels (HIVs) in San Francisco Bay and Delta ports
entitled ``Security Zones; San Francisco Bay, CA'' in the Federal
Register (68 FR 9003) under Sec. 165.T11-077. It has been in effect
since February 10, 2003 and is set to expire 11:59 p.m. PDT on May 31,
2003.
We did not publish a notice of proposed rulemaking (NPRM) this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. In addition, 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, for the following reasons. The threat of maritime attacks is
real as evidenced by the October 2002 attack of a tank 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 United States.
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).
As a result, a heightened level of security has been established around
all HIVs in San Francisco Bay and Delta ports. Additionally, the
measures contemplated by this rule are intended to prevent future
terrorist attacks against individuals and facilities within or adjacent
to HIVs. Any delay in the effective date of this TFR is impractical and
contrary to the public interest.
The original temporary final rule was urgently required to prevent
possible terrorist strikes against the United States and more
specifically the people, waterways, and properties in and near the San
Francisco and Delta ports. It was anticipated that we would assess the
security environment at the end of the effective period to determine
whether continuing security precautions were required and, if so,
propose regulations responsive to existing conditions. We have
determined that the need for continued security regulations exists.
We plan to publish a notice of proposed rulemaking (NPRM) for a
permanent HIV security zone. In this NPRM, we will propose to amend 33
CFR 165.1183, which was added by the Final rule [COTP San Francisco Bay
02-019] published in the Federal Register (67 FR 79854) on December 31,
2002. 33 CFR Sec. 165.1183, ``Security Zones; Cruise Ships and Tank
Vessels, San Francisco Bay and Delta ports, California'', establishes
security zones around cruise ships and tank vessels, but does not
address HIVs. The forthcoming NPRM will clarify the classes of vessels
sought to be encompassed in the section and will allow for a public
comment period and for a final rule to be put into effect without an
interruption in the protection provided by this temporary rule
establishing HIV security zones. Section 165.1183 will remain in effect
until amended by a future rule.
The measures contemplated by this extension to the original
temporary final rule are intended to facilitate ongoing response
efforts and prevent future terrorist attack. The Coast Guard will
utilize the extended effective period created by this TFR to engage in
notice and comment rulemaking to develop permanent regulations tailored
to the present and foreseeable security environment with the Captain of
the Port (COTP) San Francisco Bay. Therefore, the public will still
have the opportunity to comment on this rule. This revision preserves
the status quo within the Ports while permanent regulations are
developed.
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
Iraq have made it prudent to 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 an HIV would have on the public
interest, the Coast Guard is extending the effective period of security
zones around and under HIVs entering, departing, 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 HIVs. Due to these heightened security
concerns, and the catastrophic impact a terrorist attack on an HIV
would have on the crew and passengers on board, and surrounding area
and communities, security zones are prudent for these types of vessels.
As of today, the need for security zones around HIVs still exists.
This temporary final rule will extend the
[[Page 32370]]
effective period of security zones that were set to expire May 31,
2003, for 4 months--from May 31, 2003, to September 30, 2003. This will
allow the Coast Guard time to publish a notice of proposed rulemaking
(NPRM) in the Federal Register, which will include a public comment
period, and for a final rule to be put into effect without there being
an interruption in the protection provided by HIV security zones.
Discussion of Rule
On December 31, 2002, we published the final rule [COTP San
Francisco Bay 02-019] adding Sec. 165.1183, ``Security Zones; Cruise
Ships and Tank Vessels, San Francisco Bay and Delta ports, California''
in the Federal Register (67 FR 79854). That section set forth security
zones for cruise ships and tank vessels. A forthcoming NPRM, under
docket COTP San Francisco Bay 03-003 will propose to amend section
165.1183 to include HIVs as protected vessels in that section, along
with cruise ships and tank vessels. The Coast Guard will utilize the
extended effective period of the HIV security zones to engage in notice
and comment rulemaking to develop permanent regulations tailored to the
present and foreseeable security environment with the Captain of the
Port (COTP) San Francisco Bay.
In this regulation, the Coast Guard is extending the effective
period of the current security zones around all HIVs that are anchored,
moored or underway within the San Francisco Bay and Delta ports. A
security zone is automatically activated when any HIV passes 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 &
37[deg]46.5' N, 122[deg]35.2' W, respectively and remains in effect
while the vessel is underway, anchored or moored within the San
Francisco Bay and Delta ports. When activated, this security zone will
encompass all waters, extending from the surface to the sea floor,
within 100 yards ahead, astern and extending 100 yards along either
side of any HIV in the San Francisco Bay and Delta ports. This security
zone is automatically deactivated when the HIV passes seaward 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 & 37[deg]46.5'
N, 122[deg]35.2' W, respectively on its departure from port. Vessels
and people may be allowed to enter an established security zone on a
case-by-case basis with authorization from the Captain of the Port.
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, 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. 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, and 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 enlist the
aid and cooperation of any Federal, State, county, municipal, and
private agency to assist in the enforcement of the regulation. This
regulation is proposed under the authority of 33 U.S.C. 1226 in
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C.
1231.
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).
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 HIVs, their crews and passengers, other vessels
operating in the vicinity of HIVs, their crews and passengers,
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 an HIV in
the main ship channels, effectively prohibiting use of the channels.
However, the moving security zones will only be effective during HIV
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. The security zones will not have a significant economic
impact on a substantial number of small entities for several reasons:
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 zones to engage in these
activities. When a HIV is at anchor, vessel traffic will have ample
room to maneuver around the security zones. Small entities and the
maritime public will be advised of these security zones via public
notice to mariners.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offer to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. If the
rule will affect your small business, organization, or government
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact the person listed under FOR
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
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 32371]]
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 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 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 M16475.1D,
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 we are establishing a security
zone.
Under figure 2-1, paragraph (34)(g), of the Instruction, an
``Environmental Analysis Check List'' and a ``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), Reports 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; Department of Homeland Security
Delegation No. 0170.
0
2. Revise temporary Sec. 165.T11-077(f), to read as follows:
Sec. 165.T11-077 Security Zones; High Interest Vessels, San Francisco
Bay and Delta ports, California.
* * * * *
(f) Effective Dates. This section is effective at 11:59 p.m. PST on
February 10, 2003, and will terminate at 11:59 p.m. PDT on September
30, 2003.
Dated: May 19, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 03-13696 Filed 5-28-03; 1:57 pm]
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