[Federal Register Volume 67, Number 251 (Tuesday, December 31, 2002)]
[Rules and Regulations]
[Pages 79854-79856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-33018]



[[Page 79854]]

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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, CA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard has established 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 security zones are 
needed for national security reasons to protect the public and ports 
from potential terrorist acts. Entry into these zones is prohibited 
unless specifically authorized by the Captain of the Port San Francisco 
Bay.

DATES: This final rule is effective December 21, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at U.S. Coast Guard Marine Safety Office San 
Francisco Bay, Waterways Management Branch, Coast Guard Island, 
Alameda, California 94501, 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:

Regulatory Information

    On October 30, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; San Francisco Bay, California'' in 
the Federal Register (67 FR 66086). We received no letters on the 
proposed rule. No public hearing was requested, and none was held.
    On December 21, 2001, we issued a rule under 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 exits. Accordingly, this final 
rule creates a permanent regulation for security zones in the same 
locations covered by the temporary final rule published on February 20, 
2002 (67 FR 7611) which was later extended by another rule published in 
the Federal Register on June 24, 2002 (67 FR 42486).
    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 because the threat of maritime 
attacks is real as evidenced by the attack of a tanker vessel off the 
coast of Yemen and the 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 disturbances 
continue to endanger the international relations of the U.S. See also 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of 
the National Emergency with Respect to Persons Who Commit, Threaten To 
Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). 
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag 
and Effective U.S. Controlled Vessels and other Maritime Interests, 
detailing the current threat of attack, MARAD 02-07 (October 10, 2002). 
The current temporary rule is set to expire December 21, 2002, and any 
delay in the effective date of this final rule is impractical and 
contrary to the public interest.

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 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 and/or tank vessel would 
have on the public interest, the Coast Guard is establishing permanent 
security zones around and under cruise ships and tank vessels entering, 
departing, or moored or anchored within the San Francisco Bay and Delta 
ports. These security zones help the Coast Guard to 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.

Discussion of Comments and Changes

    We received no letters commenting on the proposed rule. No public 
hearing was requested, and none was held. Therefore, we have made no 
changes and will implement the provisions of the proposed rule as 
written.

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

[[Page 79855]]

the Department of Transportation (DOT) (44 FR 11040, February 26, 
1979).
    Although this regulation restricts access to the zones, the effect 
of this regulation will not be significant because: (i) The zones will 
encompass only a small portion of the waterway; (ii) vessels will be 
able to pass safely around the zones; (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; and (iv) 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.
    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.

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.

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 can 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 Agricultural 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 would 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 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.

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 because we are establishing a security 
zone. 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 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 and 160.5; 49 CFR 1.46.

    2. Add Sec.  165.1183 to read as follows:

[[Page 79856]]

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 & 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 and/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 
and/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 local law enforcement as 
necessary.

    Dated: December 20, 2002.
G.M. Swanson,
Captain, Coast Guard, Captain of the Port, San Francisco Bay.
[FR Doc. 02-33018 Filed 12-30-02; 8:45 am]
BILLING CODE 4910-15-U