[Federal Register: May 27, 2004 (Volume 69, Number 103)]
[Rules and Regulations]
[Page 30203-30206]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my04-13]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD11 04-001]
RIN 1625-AA11
Regulated Navigation Area; San Francisco Bay, San Pablo Bay,
Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and
Connecting Waters, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is designating San Francisco Bay, San Pablo
Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River,
and the connecting waters as a Regulated Navigation Area for the
purpose of prohibiting vessels carrying Liquefied Hazardous Gas (LHG)
from anchoring in the San Francisco Bay area and requiring them to
proceed directly to their intended offload facility. By establishing
these requirements, this rule limits the amount of time vessels
carrying LHG spend in the heavily populated San Francisco Bay area in
order to reduce the chances that vessels carrying LHG could be subject
to a terrorist attack or involved in an accident within these waters.
DATES: This rule is effective June 28, 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 CGD11 04-001, and are available for inspection or
copying at the Waterways Branch of the Marine Safety Office San
Francisco Bay, Coast Guard
[[Page 30204]]
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
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco
Bay, at (510) 437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On February 19, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Regulated Navigation Area; San Francisco Bay, San
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin
River, and Connecting Waters, CA'' in the Federal Register (69 FR
7717). In that NPRM, we proposed to designate the listed waters as a
Regulated Navigation Area for the purposes of prohibiting vessels
carrying LHG from anchoring, requiring them to proceed directly to
their intended offload facility, and thereby limiting the amount of
time these vessels remained within the heavily populated San Francisco
Bay area. We did not receive any letters commenting on the proposed
rule. No public hearing was requested, and none was held. We did make
one small change in this final rule to expand the definition of LHG to
include the hazards normally associated with liquefied hazardous gas.
Penalties for Violating the Regulated Navigation Area
Vessels or persons violating the precepts of this regulated
navigation area 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
regulated navigation area described herein, is punishable by civil
penalties (not to exceed $32,500 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 will enforce this regulated navigation area
and may enlist the aid and cooperation of any Federal, State, county,
municipal, or private agency to assist in the enforcement of the
regulation.
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
the conflict in Iraq have made it prudent for U.S. ports to be on a
higher state of alert because Al-Qaeda and other organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide.
The threat of maritime attacks is real as evidenced by the attack
on the USS Cole and the subsequent attack in October 2002 against a
tank vessel off the coast of Yemen. These threats manifest a 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 aggression continues 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), and Continuation of the National Emergency
with Respect to Persons Who Commit, Threaten To Commit, Or Support
Terrorism (67 FR 59447, September 20, 2002).
Additionally, the U.S. Maritime Administration (MARAD) in Advisory
02-07 advised U.S. shipping interests to maintain a heightened status
of alert against possible terrorist attacks. MARAD more recently issued
Advisory 03-05 informing operators of maritime interests of increased
threat possibilities to vessels and facilities and a higher risk of
terrorist attack to the transportation community in the United States.
The ongoing foreign hostilities have made it prudent for U.S. ports and
waterways to be on a higher state of alert because the Al-Qaeda
organization and other similar organizations have declared and ongoing
intention to conduct armed attacks on U.S. interests worldwide.
Collectively, the items noted in the previous discussion represent
a hazardous condition threatening the safety of the port and its
facilities as well as other users of the waterway. Further, due to
increased awareness that future terrorist attacks are possible, the
Coast Guard as lead federal agency for maritime homeland security, has
determined that the District Commander must have the means to deter
threats to the port while sustaining the flow of commerce. A Regulated
Navigation Area is a tool available to the Coast Guard that may be used
to control vessel traffic through ports, harbors, or other waters.
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 regulated navigation areas, to
prevent or respond to acts of terrorism against individuals, vessels,
or public or commercial structures. The Coast Guard also has authority
to establish regulated navigation areas 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 and safety concerns and to take steps to prevent a terrorist
incident involving vessels carrying Liquefied Hazardous Gas (LHG), the
Coast Guard is designating San Francisco Bay, San Pablo Bay, Carquinez
Strait, Suisun Bay, Sacramento River, San Joaquin River, and the
connecting waters as a Regulated Navigation Area for the purpose of
prohibiting vessels carrying LHG from anchoring or unnecessarily
remaining within these areas. Since September of 2001, as part of the
efforts to increase the safety and security of the Port of San
Francisco Bay, the Captain of the Port (COTP) has been issuing COTP
Orders to prohibit LHG carrying vessels from anchoring prior to
discharging their cargo. As such, this rule codifies the established
policy of prohibiting LHG carrying vessels from anchoring in San
Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento
River, San Joaquin River, and the connecting waters.
This regulated navigation area is needed to protect the public,
ports, and the environment from the potential damage that would be
caused if an LHG vessel were to become the target of a subversive act
or be involved in an accident or other event of a similar nature.
Prohibiting vessels carrying LHG from anchoring unless specifically
authorized to do otherwise by the Captain of the Port or his designated
representative will limit the amount of time these vessels are underway
in the San Francisco Bay area and reduce the
[[Page 30205]]
associated potential hazards posed by their cargo. Due to heightened
security concerns and the catastrophic impact a terrorist attack on a
vessel carrying LHG would have on the vessel, crew, surrounding area
and the public, the regulations established by this rule are prudent
for this location.
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 prohibits LHG vessels from anchoring
within the regulated navigation area and requires them to proceed
directly to their intended offload facility, the effect of this
regulation is not significant because vessels carrying LHG have been
directed by COTP orders not to anchor within San Francisco Bay, San
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin
River, and connecting waters in California since September of 2001.
Therefore, this rule is a continuation of the established policy of
prohibiting LHG vessels from anchoring in the San Francisco Bay area,
and having it published simply removes the need to issue a COTP order
each time an LHG vessel enters the bay. In addition, LHG vessels will
be allowed to anchor on a case-by-case basis with permission of the
Captain of the Port, or his designated representative.
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 because the rule only effects LHG vessels within San Francisco
Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San
Joaquin River, and connecting waters in California, it allows these
vessels to complete their intended purpose of delivering LHG cargo, and
the rule is a continuation of a policy that has been in effect since
September of 2001.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could 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 Agriculture 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 1-800-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 might
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 we are establishing a Regulated Navigation Area.
An ``Environmental Analysis Check List'' and a draft ``Categorical
Exclusion Determination'' (CED) will be
[[Page 30206]]
available in the docket where located under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record-
keeping requirements, 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. Add Sec. 165.1185, to read as follows:
Sec. 165.1185 Regulated Navigation Area; San Francisco Bay, San Pablo
Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River,
and connecting waters in California.
(a) Location. All waters of San Francisco Bay, San Pablo Bay,
Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and
connecting waters in California are a Regulated Navigation Area.
(b) Definitions. ``Liquefied hazardous gas (LHG)'' is a liquid
containing one or more of the products listed in Table 127.005 of 33
CFR 127.005 that is carried in bulk on board a tank vessel as a
liquefied gas product. The hazards normally associated with these
products include toxic or flammable properties or a combination of
both.
(c) Regulations. All vessels loaded with a cargo of liquefied
hazardous gas (LHG) within this Regulated Navigation Area must proceed
directly to their intended cargo reception facility to discharge their
LHG cargo, unless:
(1) The vessel is otherwise directed or permitted by the Captain of
the Port. The Captain of the Port can be reached at telephone number
(415) 399-3547 or on VHF-FM channel 16 (156.8 MHz). 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.
(2) The vessel is in an emergency situation and unable to proceed
as directed in paragraph (a) of this section without endangering the
safety of persons, property, or the environment.
Dated: May 17, 2004.
Kevin J. Eldridge,
Rear Admiral, U.S. Coast Guard, District Commander, Eleventh Coast
Guard District.
[FR Doc. 04-12008 Filed 5-26-04; 8:45 am]
BILLING CODE 4910-15-P