[Federal Register: April 11, 2005 (Volume 70, Number 68)]
[Rules and Regulations]
[Page 18302-18305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap05-18]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 05-004]
RIN 1625-AA87
Security Zones; Monterey Bay and Humboldt Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing moving and fixed security
zones extending 100 yards in the U.S. navigable waters around and under
all cruise ships, tank vessels, and High Interest Vessels (HIVs) that
enter, are moored in, anchored in, or depart from the designated waters
of Monterey Bay or Humboldt Bay, California. These security zones are
needed for national security reasons to protect the public and ports of
Monterey Bay and Humboldt Bay 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: This rule is effective from 4 p.m. on March 23, 2005 to 12:01
a.m. on May 11, 2005.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket [COTP San Francisco Bay 05-004] and are
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) 437-2770.
SUPPLEMENTARY INFORMATION:
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that
good cause exists for not publishing an NPRM because the threat of a
terrorist attack against cruise ships, tank vessels, and HIVs currently
exists and is ongoing.
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. The measures contemplated by this
rule are intended to prevent terrorist attacks against individuals and
facilities within or adjacent to cruise ships, tank vessels, and HIVs
located in Monterey Bay and Humboldt Bay. Any delay in the effective
date of this TFR would be contrary to the public interest and would
unnecessarily expose cruise ships, tank vessels, and HIVs to potential
terrorist attacks.
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 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, tank vessel, or HIV
would have on the public interest, the Coast Guard is establishing
security zones around and under cruise ships, tank vessels, and HIVs
entering, departing, moored or anchored within designated waters of
Monterey Bay and Humboldt Bay, California. These security zones help
the Coast Guard to prevent vessels or persons from engaging in
terrorist actions against these types of vessels. Due to these
heightened security concerns, and the catastrophic impact a terrorist
attack on a cruise ship, tank vessel, or HIV would have on the crew and
passengers on board, and the surrounding area and communities, security
zones are prudent for these types of vessels.
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 in San Francisco Bay and delta
ports. A subsequent final rule [COTP San Francisco Bay 03-002]
published in the Federal Register (69 FR 8817) on February 26, 2004,
amended section 165.1183 to include HIVs as protected vessels in that
section, along with cruise ships and tank vessels. Neither of these
final rules addressed security zones around cruise ships, tank vessels,
or HIVs located in Monterey Bay or Humboldt Bay, California.
In addition, we published a notice of proposed rulemaking (NPRM) in
the Federal Register (69 FR 56011) on September 17, 2004, that proposed
to make permanent these temporary security zones around cruise ships,
tank
[[Page 18303]]
vessels, and HIVs in Monterey Bay and Humboldt Bay. In the NPRM, we
proposed to amend 33 CFR 165.1183, ``Security Zones; Cruise Ships, Tank
Vessels, and High Interest Vessels, San Francisco Bay and Delta ports,
California'', to include security zones around cruise ships, tank
vessels, and HIVs when they are located in Monterey Bay and Humboldt
Bay, California. The final rule that will effect this change is
published elsewhere in today's Federal Register, but will not go into
effect until 12:01 on May 11, 2005. This temporary rule will provide
the desired level of security for these vessels in Monterey Bay and
Humboldt Bay until the final rule goes into effect.
Temporary final rules similar to this one have been used in the
past to establish security zones around all cruise ships, tank vessels,
and HIVs that are anchored, moored, or underway within designated
waters of Monterey Bay and Humboldt Bay, California. The first TFR was
published in the Federal Register (69 FR 16163) on March 29, 2004. The
second TFR was published in the Federal Register (69 FR 55502) on
September 15, 2004.
For Monterey Bay, a security zone is activated when any cruise
ship, tank vessel, or HIV passes shoreward of a line drawn between
Santa Cruz Light (LLNR 305) to the north in position 36[deg]57.10' N,
122[deg]01.60' W, and Cypress Point, Monterey to the south, in position
36[deg]34.90' N, 121[deg]58.70' W.
For Humboldt Bay, a security zone is activated when any cruise
ship, tank vessel, or HIV enters an area within a 4 nautical mile
radius line drawn west of the Humboldt Bay Entrance Lighted Whistle
Buoy HB (LLNR 8130), in position 40[deg]46.25' N, 124[deg]16.13' W, or
enters waters within the Humboldt Bay Harbor.
The security zone remains in effect while the cruise ship, tank
vessel, or HIV is underway, anchored or moored within the designated
waters of Monterey Bay or Humboldt Bay. When activated, the 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 the vessel. This security zone is automatically
deactivated when the vessel departs from the areas of Monterey Bay or
Humboldt Bay designated in this rule. 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, or his designated
representative.
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 a security zone 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, 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.
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 a portion of navigable
waters, the effect of this regulation will not be significant because:
(i) The zones encompass only a small portion of the waterway; (ii)
vessels are able to pass safely around the zones; and (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.
The size of the zones is the minimum necessary to provide adequate
protection for all cruise ships, tank vessels, and HIVs, other vessels
operating in the vicinity of these vessels, adjoining areas, and the
public. The entities most likely to be affected are fishing vessels and
pleasure craft engaged in recreational activities and sightseeing.
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.
We expect this rule may affect owners and operators of vessels,
some of which may be small entities, intending to fish, sightsee,
transit, or anchor in the waters affected by these security zones.
These security zones will not have a significant economic impact on a
substantial number of small entities for several reasons: Small vessel
traffic will be able to 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. 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 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. 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 Lieutenant Doug Ebbers,
Waterways Management Branch, U.S. Coast Guard Marine Safety Office San
Francisco Bay, (510) 437-2770.
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 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for no new collection of information under the
Paperwork
[[Page 18304]]
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 or 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.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
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 security
zone.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where located 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. Add Sec. 165.T11-020, to read as follows:
Sec. 165.T11-020 Security Zones; Monterey Bay and Humboldt Bay,
California.
(a) Definitions. As used in this section--
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
ports of Monterey or Humboldt Bay.
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.
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.
(b) Locations. The following areas are security zones:
(1) Monterey Bay. All waters extending from the surface to the sea
floor, within 100 yards of all cruise ships, tank vessels, and HIVs
within the waters of Monterey Bay east of a line drawn between Santa
Cruz Light (LLNR 305) to the north in position 36[deg]57.10' N,
122[deg]01.60' W, and Cypress Point, Monterey to the south, in position
36[deg]34.90' N, 121[deg]58.70' W.
(2) Humboldt Bay. All waters extending from the surface to the sea
floor, within 100 yards of all cruise ships, tank vessels, and HIVs
within the waters of Humboldt Bay and the waters within a 4 nautical
mile radius of the Humboldt Bay Entrance Lighted Whistle Buoy HB (LLNR
8130), in position 40[deg]46.25' N, 124[deg]16.13' W.
[[Page 18305]]
(c) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into these security zones is
prohibited, unless specifically authorized by the Captain of the Port
San Francisco Bay, or his designated representative.
(2) Persons desiring to transit the area of a 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 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.
(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) Enforcement. All persons and vessels shall comply with the
instructions of the Coast Guard Captain of the Port, or the designated
on-scene patrol personnel. Patrol personnel comprise commissioned,
warrant, and petty officers of the Coast Guard onboard Coast Guard,
Coast Guard Auxiliary, local, state, and federal law enforcement
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by
siren, radio, flashing light, or other means, the operator of a vessel
shall proceed as directed. The U.S. Coast Guard may be assisted in the
patrol and enforcement of these security zones by local law enforcement
as necessary.
(f) Effective period. This section becomes effective at 4 p.m. on
March 23, 2005, and will terminate at 12:01 a.m. on May 11, 2005.
Dated: March 23, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 05-7219 Filed 4-8-05; 8:45 am]
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