[Federal Register Volume 67, Number 210 (Wednesday, October 30, 2002)]
[Proposed Rules]
[Pages 66086-66089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27528]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 02-019]
RIN 2115-AA97


Security Zones; San Francisco Bay, California

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 extending 100 yards around and under all cruise ships 
and tank vessels that enter, are moored in, anchored in or depart from 
the San Francisco Bay, California, and Delta ports. 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 San Francisco Bay.

DATES: Comments and related material must reach the Coast Guard on or 
before November 29, 2002.

ADDRESSES: You may mail comments and related material to 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

[[Page 66087]]

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 Diana Cranston, Chief, 
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 02-019), 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 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 
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 and/or tank vessel would 
have on the public interest, the Coast Guard proposes to establish 
permanent security zones around and under cruise ships and tank vessels 
entering, departing, or moored within the San Francisco Bay and Delta 
ports. These security zones will help the Coast Guard prevent vessels 
or persons from engaging in terrorist actions against cruise ships and 
tank vessels. Due to these heightened security concerns, and the 
catastrophic impact a terrorist attack on a cruise ship and/or tank 
vessel would have on the multiple passengers on board and surrounding 
area and communities, security zones are prudent for these types of 
vessels.
    On December 21, 2001, we issued a rule under docket COTP San 
Francisco Bay 01-012, and published that rule in the Federal Register 
(67 FR 7611, February 20, 2002) creating temporary section 165.T11-098 
of Title 33 of the Code of Federal Regulations (CFR). Under temporary 
section 165.T11-098, which expired at 11:59 p.m. PDT on June 21, 2002, 
the Coast Guard established 100-yard security zones around all cruise 
ships and tank vessels that entered, were moored in, or departed from 
the San Francisco Bay and Delta ports.
    On June 12, 2002, a change in effective period temporary rule was 
issued, under docket COTP San Francisco Bay 02-012 and was published in 
the Federal Register (67 FR 42486, June 24, 2002), under the same 
previous temporary section 165.T11-098, which is set to expire at 11:59 
p.m. on December 21, 2002. The Captain of the Port has determined the 
need for continued security regulations exists. The proposed regulation 
differs slightly from temporary section 165.T11-098. Although, while 
implicit in the temporary rule, the security zones proposed here will 
be described as extending from the water's surface to the sea floor. 
This more specific description is intended to discourage unidentified 
scuba divers and swimmers from coming within close proximity of cruise 
ships and/or tank vessels. Accordingly, this rulemaking proposes to 
make permanent the temporary security zones established on December 21, 
2001, under docket number COTP SFB 01-012, 33 CFR 165.T11-098 published 
in the Federal Register on February 20, 2002 (67 FR 7611). The 
effective period of that temporary rule was extended until December 21, 
2002, by another rule published in the Federal Register on June 24, 
2002 (67 FR 42486).

Discussion of Proposed Rule

    The Coast Guard proposes to establish moving and fixed security 
zones around all cruise ships and tank vessels that are anchored, 
moored, or underway within the San Francisco Bay and Delta ports. These 
proposed security zones are activated when any cruise ship and/or tank 
vessel passes 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). 
This proposed rule, for security concerns, prohibits entry of any 
vessel inside the security zone surrounding a cruise ship and/or tank 
vessel. These security zones are within a 100-yard radius around any 
cruise ship and/or tank vessel that is anchored at a designated 
anchorage; that is moored, or in the process of mooring, at any berth 
within the San Francisco Bay and Delta port areas; and that is 
underway.
    These security zones are needed for national security reasons to 
protect cruise ships, tank vessels, 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

[[Page 66088]]

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-compliant 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.
    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 and laden tank vessels, their 
crews and passengers, other vessels operating in the vicinity of the 
cruise ships and laden taken 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 the San Francisco Bay 
and Delta ports and pleasure craft engaged in recreational activities 
and sightseeing. The security zones will prohibit any commercial 
vessels from meeting or overtaking a cruise ship and/or a tank ship in 
the main ship channels, effectively prohibiting use of the channels. 
However, the moving security zones will only be effective during cruise 
ship and tank 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 San Francisco Bay 
and Delta ports.

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 cruise ships and tank ships 
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 period of times while the cruise 
ships and/or tank 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 or tank 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 or tank 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 or tank vessel 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 Diana 
Cranston, Chief, Waterways Management Division, (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

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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 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.  165.1183 to read as follows:


Sec.  165.1183  Security Zones; Cruise Ships and Tank Vessels, San 
Francisco Bay and Delta ports, 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 San Francisco 
Bay and Delta ports.
    (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 and tank ship 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) The shore area and all waters, extending from the surface to 
the sea floor, within a 100-yard radius around any cruise ship and tank 
ship 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) All waters, extending from the surface to the sea floor within 
a 100-yard radius around any cruise ship and/or tank ship that is 
underway shoreward of the line drawn between San Francisco Main Ship 
Channel buoys 7 and 8 (LLNR 4190 and 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 510-437-3073 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 or tank vessel 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 or 
tank vessel'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 state and local law enforcement 
agencies as necessary.

    Dated: October 10, 2002.
G.M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay.
[FR Doc. 02-27528 Filed 10-29-02; 8:45 am]
BILLING CODE 4910-15-P