[Federal Register Volume 67, Number 30 (Wednesday, February 13, 2002)]
[Rules and Regulations]
[Pages 6648-6650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3512]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 01-022]

RIN 2115-AA97


Security Zones; Port of San Diego, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a moving and fixed security 
zone 100 yards around all cruise ships that enter, are moored in, or 
depart from the Port of San Diego. This security zone is needed for 
national security reasons to protect the public and ports from 
potential subversive acts. Entry into these zones is prohibited, unless 
specifically authorized by the Captain of the Port San Diego, or his 
designated representative.

DATES: This rule is effective from 11:59 p.m. PST on November 5, 2001 
to 11:59 p.m. PDT on June 21, 2002.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Diego 01-022 and are available 
for inspection or copying at Coast Guard Marine Safety Office San 
Diego, 2716 North Harbor Drive, San Diego, California, 92101, between 8 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Joseph Brown, 
Port Safety and Security, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Publishing an NPRM, which 
would incorporate a comment period before a final rule was issued, 
would be contrary to the public interest since immediate action is 
needed to protect the public, ports, and waterways of the United 
States. For the same reasons, 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 Coast Guard will 
issue a broadcast notice to mariners advising of these new regulations.

Background and Purpose

    Based on the September 11, 2001, terrorist attacks on the World 
Trade Center in New York and the Pentagon in Arlington, Virginia, there 
is an increased risk that subversive activity could be launched by 
vessels or persons in close proximity to the Port of San Diego, against 
cruise ships entering, departing, or moored within the port of San 
Diego. The terrorist acts against the United States on September 11, 
2001, have increased the need for safety and security measures on U.S. 
ports and waterways. In response to these terrorist acts, and in order 
to prevent similar occurrences, the Coast Guard has established a 
security zone around cruise ships to protect persons, transiting 
vessels, adjacent waterfront facilities, and the adjacent land of the 
Port of San Diego. These security zones are necessary to prevent damage 
or injury to any vessel or waterfront facility, and to safeguard ports, 
harbors, or waters of the United States near San Diego, California. 
This zone will be enforced by the official patrol (Coast Guard 
commissioned, warrant or petty officers) onboard Coast Guard vessels 
and patrol craft. The official patrol may also be onboard patrol craft 
and resources of any government agency that has agreed to assist the 
Coast Guard in the performance of its duties.
    Persons and vessels are prohibited from entering into this security 
zone unless authorized by the Captain of the Port or his designated 
representative. Each person and vessel in a security zone must obey any 
direction or order of the COTP. The COTP may remove any person, vessel, 
article, or thing from a security zone. No person may board, or take or 
place any article or thing on board any vessel in a security zone 
without the permission of the COTP.
    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 for not more than 
6 years and a fine of not more than $250,000), in rem liability against 
the offending vessel, and license sanctions. Any person who violates 
this regulation, 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 (class C felony).
    This security zone prohibits all vessels and people from 
approaching cruise ships that are underway or moored near San Diego, 
California. Specifically, no vessel or person may close to within 100 
yards of a cruise ship that is entering, moored in, or departing the 
Port of San Diego.
    A security zone is automatically activated when a cruise ship 
passes the San Diego sea buoy while entering port and remains in effect 
while the vessel is moored within in the Port of San Diego, California. 
When activated, this security zone will encompass a portion of the 
waterway described as a 100 yard radius around a cruise ship in the 
Port of San Diego. This security zone is automatically deactivated when 
the cruise ship passes the San Diego sea buoy on its departure from 
port. Vessels

[[Page 6649]]

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.

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 Transportation 
(DOT)(44 FR 11040, February 26, 1979) because these zones will 
encompass a small portion of the waterway for a limited duration.
    The Port of San Diego can accommodate only a few cruise ships 
moored at the same time. Most cruise ships calls at each location occur 
on only one day each week, and are generally less than 18 hours in 
duration. Also, vessels and people may be allowed to enter the zones on 
a case-by-case basis with authorization from the Captain of the Port.

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.
    For the same reasons stated in the section above, 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 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 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. 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. A ``Categorical Exclusion Determination'' 
is available in the docket for inspection or copying where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports 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, 160.5; 49 CFR 1.46.


    2. Add a new temporary Sec. 165.T11-030 to read as follows:

[[Page 6650]]

Sec. 165.T11-030  Security Zones; Port of San Diego.

    (a) Regulated area. Temporary moving security zones are established 
100 yards around all cruise ships while entering or departing the Port 
of San Diego. These moving security zones are activated when the cruise 
ship passes the Los Angeles sea buoy while entering the Port of San 
Diego. Temporary fixed security zones are established 100 yards around 
all cruise ships docked in the Port of San Diego. This security zone is 
deactivated when the cruise ship passes the sea buoy on its departure 
from the Port of San Diego.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec. 165.33 of this part, the following rules apply to security zones 
established by this section:
    (i) No person or vessel may enter or remain in a security zone 
without the permission of the Captain of the Port;
    (ii) Each person and vessel in a security zone must obey any 
direction or order of the Captain of the Port;
    (iii) The Captain of the Port may take possession and control of 
any vessel in a security zone;
    (iv) The Captain of the Port may remove any person, vessel, 
article, or thing from a security zone;
    (v) No person may board, or take or place any article or thing on 
board, any vessel in a security zone without the permission of the 
Captain of the Port; and
    (vi) No person may take or place any article or thing upon any 
waterfront facility in a security zone without the permission of the 
Captain of the Port.
    (2) The Captain of the Port will notify the public, via local 
broadcast notice to mariners, upon activation of security zone around 
cruise ships transiting San Diego Harbor.
    (3) Nothing in this section shall be construed as relieving the 
owner or person in charge of any vessel from complying with the rules 
of the road and safe navigation practice.
    (4) The regulations of this section will be enforced by the Captain 
of the Port San Diego, or his authorized representative, and the San 
Diego Harbor Police.
    (c) Dates. This section becomes effective at 11:59 p.m. PST on 
November 5, 2001, and will terminate at 11:59 p.m. PDT on June 21, 
2002.

    Dated: November 4, 2001.
S.P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 02-3512 Filed 2-12-02; 8:45 am]
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