[Federal Register Volume 67, Number 208 (Monday, October 28, 2002)]
[Proposed Rules]
[Pages 65746-65749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27375]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP Los Angeles-Long Beach 02-004]
RIN 2115-AA97


Security Zones; San Pedro Bay, CA

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish moving and fixed 
security zones around and under all cruise ships located on San Pedro 
Bay, California, in and near the ports of Los Angeles and Long Beach. 
These proposed security zones are needed for national security reasons 
to protect the public and ports from potential terrorist acts. Entry 
into these zones will be prohibited unless specifically authorized by 
the Captain of the Port Los Angeles-Long Beach.

DATES: Comments and related material must reach the Coast Guard on or 
before November 22, 2002.

ADDRESSES: You may mail comments and related material to U.S. Coast 
Guard Marine Safety Office/Group Los Angeles-Long Beach, Waterways 
Management Division, 1001 S. Seaside Avenue, Building 20, San Pedro, 
California 90731. The Waterways Management Division 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 
Division between 8 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Rob Griffiths, 
Assistant Chief, Waterways Management Division, (310) 732-2020.

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 Los 
Angeles-Long Beach 02-004), 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.
    In our final rule, we will include a concise general statement of 
the comments received and identify any changes from the proposed rule 
based on the comments. If as we anticipate, we make the final rule 
effective less than 30 days after publication in the Federal Register, 
we will explain our good cause for doing so, as required by 5 U.S.C. 
553(d)(3).

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 Division 
at the

[[Page 65747]]

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 
growing tensions in 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 Magnuson Act (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 would have on the public 
interest, the Coast Guard proposes to establish security zones around 
and under cruise ships entering, departing, or moored within the ports 
of Los Angeles and Long Beach. These security zones will help the Coast 
Guard to prevent vessels or persons from engaging in terrorist actions 
against cruise ships. The Coast Guard believes the establishment of 
security zones is prudent for cruise ships because they carry multiple 
passengers.
    On November 1, 2001, we issued a similar rule under docket COTP Los 
Angeles-Long Beach 01-011, and published that rule in the Federal 
Register (67 FR 2571, Jan. 18, 2002) under temporary section 165.T11-
058 of Title 33 of the Code of Federal Regulations (CFR). Under 
temporary section 165.T11-058, which expired at 11:59 PDT on May 1, 
2002, the Coast Guard established a 100-yard security zone around all 
cruise ships that entered, were moored in, or departed from the Port of 
Los Angeles and that were anchored at Catalina Island.
    On May 1, 2002, another temporary rule was issued, under docket 
COTP Los Angeles-Long Beach 02-009, and was published in the Federal 
Register (67 FR 31955, May 13, 2002) under temporary section 165.T11-
065 of Title 33 of the CFR. Under temporary section 165.T11-065, which 
expires at 11:59 p.m. PST on December 1, 2002, the Coast Guard 
established moving and fixed security zones around cruise ships located 
on San Pedro Bay, California, near and in the ports of Los Angeles and 
Long Beach. The Captain of the Port has determined the need for 
continued security regulations exists.
    Accordingly, this rulemaking proposes to make permanent the 
temporary security zones established on May 1, 2002, in the rule 
published in the Federal Register at 67 FR 31955 on May 13, 2002.

Discussion of Proposed Rule

    The Coast Guard proposes to establish moving and fixed security 
zones around all cruise ships that are anchored, moored, or underway 
within the Los Angeles and Long Beach, port areas. These proposed 
security zones will take effect upon the entry of any cruise ship into 
the waters within three nautical miles outside of the Federal 
breakwaters encompassing San Pedro Bay and will remain in effect until 
the cruise ship departs the three nautical mile limit. This proposed 
rule, for security concerns, prohibits entry of any vessels inside the 
security zone surrounding a cruise ship. These security zones are 
within a 100 yard radius around any cruise ship that is anchored at a 
designated anchorage; within a 100 yard radius around any cruise ship 
that is moored, or in the process of mooring at any berth within the 
Los Angeles or Long Beach port areas; and within 200 yards ahead, and 
100 yards on each side and astern of a cruise ship that is underway.
    These security zones are needed for national security reasons to 
protect cruise ships, 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 
will be prohibited unless specifically authorized by the Captain of the 
Port or his designated representative. Vessels already moored or 
anchored when these security zones take effect are not required to get 
underway to avoid either the moving or fixed zones unless specifically 
ordered to do so by 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 and 33 CFR part 27, 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 will enforce these zones and may request 
the use of resources and personnel of other government agencies to 
assist in the patrol and enforcement of the regulation. The Captain of 
the Port retains discretion to initiate Coast Guard civil penalty 
action against non-complaint parties pursuant to the PWSA, or, refer 
appropriate cases to the cognizant U.S. Attorney Office for 
disposition. This regulation is proposed under the authority of 33 
U.S.C. 1226 in addition to the authority contained in 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 
Transportation (DOT) (44 FR 11040, February 26, 1979).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT is unnecessary.

[[Page 65748]]

    The effect of this regulation will not be significant because the 
zones will encompass only a small portion of the waterway. Furthermore, 
vessels will be able to pass safely around the zones, and 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 sizes of the zones are the minimum necessary to provide 
adequate protection for the cruise ships, their crews and passengers, 
other vessels operating in the vicinity of the cruise ships and their 
crews, adjoining areas, and the public. The entities most likely to be 
affected are commercial vessels transiting the main ship channel en 
route to the Ports of Los Angeles and Long Beach and pleasure craft 
engaged in recreational activities and sightseeing. The security zones 
will prohibit any commercial vessels from meeting or overtaking a 
cruise ship in the main ship channels, effectively prohibiting use of 
the channels. However, the moving security zones will only be effective 
during cruise ship transits, which will last for approximately 30 
minutes. In addition, vessels are able to safely transit around the 
zones while a vessel is moored or at anchor in the Ports of Los Angeles 
and Long Beach.

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 the 
following entities, some of which may be small entities: The owners and 
operators of private and commercial vessels intending to transit or 
anchor in these small portions of the ports of Los Angeles or Long 
Beach near a cruise ship covered by these security zones. The impact to 
these entities would not be significant since these zones are proposed 
to encompass only small portions of the waterway for limited periods of 
time while the cruise ships are transiting, moored, or in anchorage. 
Delays, if any, are expected to be less than thirty minutes in 
duration.
    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 zone to engage in these 
activities. When a cruise ship is at anchor, vessel traffic will have 
ample room to maneuver around the security zone. The outbound or 
inbound transit of a cruise ship will last about 30 minutes. Although 
this regulation prohibits simultaneous use of portions of the channel, 
this prohibition is of short duration. While a cruise ship is moored, 
commercial traffic and small recreational traffic will have an 
opportunity to coordinate movement through the security zone with the 
COTP or his or her designated representative.
    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 Junior 
Grade Rob Griffiths, Assistant Chief, Waterways Management Division, 
(310) 732-2020.

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 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

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

[[Page 65749]]

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 proposed 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 because we are proposing to establish 
security zones. A ``Categorical Exclusion Determination'' is available 
in the docket where indicated under ADDRESSES.

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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

    2. Add Sec.  165.1154 to read as follows:


Sec.  165.1154  Security Zones; Cruise Ships, San Pedro Bay, 
California.

    (a) Definition. ``Cruise ship'' as used in this section 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 Port of Los 
Angeles or Port of Long Beach.
    (b) Location. The following areas are security zones:
    (1) All waters, extending from the surface to the sea floor, within 
a 100-yard radius around any cruise ship that is anchored at a 
designated anchorage either inside the Federal breakwaters bounding San 
Pedro Bay or outside at designated anchorages within three nautical 
miles of the Federal breakwaters;
    (2) The shore area and all waters, extending from the surface to 
the sea floor, within a 100-yard radius around any cruise ship that is 
moored, or is in the process of mooring, at any berth within the Los 
Angeles or Long Beach port areas inside the Federal breakwaters 
bounding San Pedro Bay; and
    (3) All waters, extending from the surface to the sea floor, within 
200 yards ahead, and 100 yards on each side and astern of a cruise ship 
that is underway either on the waters inside the Federal breakwaters 
bounding San Pedro Bay or on the waters within three nautical miles 
seaward of the Federal breakwaters.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into or remaining in these zones is 
prohibited unless authorized by the Coast Guard Captain of the Port, 
Los Angeles-Long Beach, 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 1-800-221-USCG 
(8724) 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 or 
her designated representative.
    (3) When a cruise ship 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's security zone unless 
it is either ordered by, or given permission from, the COTP Los 
Angeles-Long Beach 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 the Los Angeles Port Police and 
the Long Beach Police Department.

    Dated: October 4, 2002.
J.M. Holmes,
Captain, Coast Guard, Captain of the Port, Los Angeles-Long Beach.
[FR Doc. 02-27375 Filed 10-25-02; 8:45 am]
BILLING CODE 4910-15-U