[Federal Register: November 12, 2003 (Volume 68, Number 218)]
[Proposed Rules]
[Page 64038-64041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no03-19]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-002]
RIN 1625-AA00
Security Zones; San Francisco Bay, California
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes to establish moving and fixed
security zones extending 100 yards around and under all High Interest
Vessels (HIVs) located in the San Francisco Bay and Delta ports,
California. These security zones are necessary security measures and
are intended to protect the public and ports from potential subversive
acts. Entry into these security zones would be prohibited, unless
specifically authorized by the Captain of the Port San Francisco Bay,
or his designated representative.
DATES: Comments and related material must reach the Coast Guard on or
before January 12, 2004.
ADDRESSES: You may mail comments and related material to the Waterways
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco
Bay, Coast Guard Island, Alameda, California 94501. The Waterways
Management Branch 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 the Waterways Management Branch between 9 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco
Bay, (510) 437-3073.
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 San
Francisco Bay 03-002), 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 that 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.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to the Waterways Management Branch 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
Iraq have made it prudent to U.S. ports to be on a higher state of
alert because Al-Qaeda and other organizations have declared an ongoing
[[Page 64039]]
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 proposed rulemaking, to address the
aforementioned security concerns and to take steps to prevent the
catastrophic impact that a terrorist attack against a High Interest
Vessel (HIV) would have on the public interest, the Coast Guard is
proposing to establish permanent security zones around and under HIVs
entering, departing, moored or anchored within the San Francisco Bay
and Delta ports. These security zones would help the Coast Guard
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 communities, security zones are
prudent for these types of vessels.
On February 10, 2003, we issued a rule under docket COTP San
Francisco Bay 03-002 and published this rule in the Federal Register
(68 FR 9003, February 27, 2003) creating temporary section 165.T11-077
of Title 33 of the Code of Federal Regulations (CFR). Under temporary
section 165.T11-077, the Coast Guard established 100-yard moving and
fixed security zones around all HIVs that are anchored, moored or
underway within the San Francisco Bay and Delta ports.
Though temporary section 165.T11-077 expired at 11:59 p.m. P.s.t.
on May 31, 2003, it was effectively and seamlessly extended by a change
in effective period temporary rule that was issued on May 19, 2003.
This change in the effective period of the temporary rule is found
under docket COTP San Francisco Bay 03-002 and was published in the
Federal Register (68 FR 32368, May 30, 2003), under the same previous
temporary section 165.T11-077, and extended the rule to 11:59 p.m.
P.d.t. on September 30, 2003. On September 11, 2003, a second change in
effective period temporary rule was issued, under docket COTP San
Francisco Bay 03-002 and was published (68 FR 55445, September 26,
2003), under the same previous temporary section 165.T11-077, further
extending the rule to 11:59 p.m. P.s.t. on March 31, 2004. The Captain
of the Port has determined there is a need for continued security
regulations exists.
We propose to create permanent security zones in the same areas
currently protected by temporary security zones under Sec. 165.T11-
077. Our proposed rule would amend Sec. 165.1183, Security Zones;
Cruise Ships and Tank Vessels, San Francisco Bay and Delta ports,
California (see 67 FR 79856, December 31, 2002), which contains
permanent security zones for cruise ships and tank vessels. In this
NPRM, the Coast Guard is proposing to amend Sec. 165.1183 to include
HIVs as protected vessels along with cruise ships and tank vessels. The
Coast Guard will utilize the extended effective period of the Sec.
165.T11-077 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.
Discussion of Proposed Rule
The Coast Guard proposes to establish moving and fixed security
zones around all HIVs that are anchored, moored or underway within the
San Francisco Bay and Delta ports. These security zones are 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 in the San Francisco Bay and Delta ports.
When activated, this security zone would 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.
These security zones are needed for national security reasons to
protect HIVs, 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 would be
prohibited unless specifically authorized by the Captain of the Port or
his designated representative.
Vessels or persons violating this section would 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.
The Captain of the Port would 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 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
Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary. Although this proposed rule
restricts access to the waters encompassed by the security zones, the
effect of this proposed rule
[[Page 64040]]
would not be significant because: (i) The zones would encompass only a
small portion of the waterway; (ii) vessels would 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 size of the proposed zones are the minimum necessary to provide
adequate protection for HIVs, their crews and passengers, other vessels
operating in the vicinity of HIVs, adjoining areas and the public. The
entities most likely to be affected are commercial vessels transiting
the main ship channel en route to the San Francisco Bay and Delta ports
and pleasure craft engaged in recreational activities and sightseeing.
The proposed security zones would 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
would only be effective during HIV transits, which would last for
approximately 30 minutes.
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 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
owners and operators of private and commercial vessels, some of which
may be small entities, intending to transit or anchor in the small
portions of the waterway that are affected by these security zones. The
proposed security zones would not have a significant economic impact on
a substantial number of small entities for several reasons: 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 would have ample room to maneuver
around the security zones. Small entities and the maritime public would
be advised of these security zones via public notice to mariners.
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 Lieutenant Doug
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety
Office San Francisco Bay, (510) 437-3073.
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 proposed 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.
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. 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 proposed 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
[[Page 64041]]
documentation because we are establishing a security zone.
A draft ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' (CED) are available in the
docket where indicated under ADDRESSES. Comments on this section will
be considered before we make the final decision on whether the rule
should be categorically excluded from further environmental review.
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:
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.
2. Revise Sec. 165.1183 to read as follows:
Sec. 165.1183 Security Zones; Cruise Ships, Tank Vessels and High
Interest Vessels, San Francisco Bay and Delta ports, California.
(a) Definitions. As used in this section--
(1) Cruise ship 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.
(2) Tank vessel means any self-propelled tank ship that is
constructed or adapted primarily to carry oil or hazardous material in
bulk as cargo or cargo residue in the cargo spaces. The definition of
tank ship does not include tank barges.
(3) High Interest Vessel or HIV means any vessel deemed by the
Captain of the Port or higher authority as a vessel requiring
protection based upon risk assessment analysis of the vessel and is
therefore escorted by a Coast Guard or other law enforcement vessel
with an embarked Coast Guard commissioned, warrant, or petty officer.
(b) Location. The following areas are security zones:
(1) Zones for anchored vessels. All waters, extending from the
surface to the sea floor, within 100 yards ahead, astern and extending
100 yards along either side of any cruise ship, tank vessel or HIV 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) Zones for moored or mooring vessels. The shore area and all
waters, extending from the surface to the sea floor, within 100 yards
ahead, astern and extending 100 yards along either side of any cruise
ship, tank vessel or HIV 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) Zones for vessels underway. All waters of the San Francisco Bay
and Delta port areas, extending from the surface to the sea floor,
within 100 yards ahead, astern and extending 100 yards along either
side of any cruise ship, tank vessel or HIV 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 415-399-3547 or on
VHF-FM channel 16 (156.8 MHz) to seek permission to do so. 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, tank vessel or HIV 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,
tank vessel or HIV'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: October 24, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 03-28329 Filed 11-10-03; 8:45 am]
BILLING CODE 4910-15-P