[Federal Register Volume 68, Number 5 (Wednesday, January 8, 2003)]
[Rules and Regulations]
[Pages 1005-1008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-315]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 02-026]
RIN 2115-AA97


Security Zones; Port of San Diego, CA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing moving and fixed security 
zones around and under all cruise ships that are located in and near 
the Port of San Diego. These 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 of San Diego.

DATES: This rule is effective on December 21, 2002 at 11:59 p.m. (PST).

ADDRESSES: Comments and material received from the public as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket [COTP San Diego 02-026], and are available for 
inspection or copying at U.S. Coast Guard Marine Safety Office San 
Diego, 2716 N. Harbor Dr., San Diego, CA, 92101, between 8 a.m. and 4 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Rick Sorrell,

[[Page 1006]]

Chief of Port Operations, U.S. Coast Guard Marine Safety Office San 
Diego, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On November 1, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled Security Zones, Port of San Diego, CA in the Federal 
Register (67 FR 212). We received 1 letter commenting on the proposed 
rule. No public hearing was requested, and none was held.
    On November 5, 2001, we issued a temporary rule under docket COTP 
San Diego 01-020 which was published in the Federal Register (67 FR 
6648, Feb. 13, 2002) under temporary section 165.T11-030 of Title 33 of 
the Code of Federal Regulations (CFR). In that rulemaking, the Coast 
Guard established a rule creating 100-yard security zones around cruise 
ships that enter, are moored in, or depart from the Port of San Diego.
    On June 21, 2002, a change in effective period for the temporary 
rule was issued, under docket COTP SD 02-013, and was published in the 
Federal Register (67 FR 41845, June 20, 2002) under the same previous 
temporary section 165.T11-030, 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. This final rule differs slightly 
from temporary section 165.T11-030 in one way. 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 a cruise 
ship.
    Accordingly, this rulemaking makes permanent the temporary security 
zones established on November 5, 2001, under docket COTP San Diego 01-
020, 33 CFR 165.T11-030 published in the Federal Register at 67 FR 6648 
(February 13, 2002). That temporary rule's effective period was 
extended until December 21, 2002 by a notice in the Federal Register 
dated June 20, 2002 (67 FR 41845).
    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) that the security of the U.S. is endangered by the 9/11/01 
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 Fed. Reg. 58317 (September 13, 2002); 
Continuation of the National Emergency with Respect to Persons Who 
Commit, Threaten To Commit, Or Support Terrorism, 67 Fed. Reg. 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 and section 104 of the Maritime 
Transportation Security Act of November 25, 2002 (50 U.S.C. 191 et seq) 
(Magnuson Act) 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 is establishing security zones around and 
under cruise ships entering, departing, or moored within the port of 
San Diego. These security zones will help the Coast Guard 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.

Discussion of Comments and Changes

    We received one letter from the local port authority commenting on 
the definition of a cruise ship used in the notice of proposed 
rulemaking. The definition in the notice of proposed rulemaking defined 
``cruise ship'' as a ``passenger vessel, except for a ferry, over 100 
feet in length, authorized to carry more than 12 passengers for hire; 
capable of making international voyages lasting more than 24 hours, any 
part of which is on the high seas; and for which passengers are 
embarked, disembarked, or at a port of call in the San Diego port''.
    The local port authority noted that this definition of ``cruise 
ship'' would include various commercial sport fishing vessels that 
homeport in San Diego. After consideration of the comment, the Coast 
Guard has changed the definition of a ``cruise ship'' from ``over 100 
feet in length'' to ``100 gross tons or more''. This change will 
eliminate commercial sport fishing vessels from the definition of 
``cruise ship''.

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, l979).
    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 due to the 
minimal time that vessels will be restricted from the area. Also, the 
zones will encompass only a small portion of the waterway. The Port of 
San Diego can accommodate only a few cruise ships moored at the same 
time. Most cruise ship calls at

[[Page 1007]]

each location occur on only one day each week, and are generally less 
than 18 hours in duration. Furthermore, vessels will be able to pass 
safely around the zones, and vessels and people may be allowed to enter 
these zones on a case-by-case basis with permission of the Captain of 
the Port.
    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 the Port of San Diego 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 limiting the use of the channel. However, 
the moving security zones will only be effective during cruise ship 
transits, which will last for approximately 60 minutes. In addition, 
vessels are able to safely transit around the zones while a vessel is 
moored or at anchor in the Port of San Diego.

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 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 near the cruise ships covered by these 
security zones, of the port of San Diego. 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 are transiting, moored). Delays, if any, are expected 
to be less than sixty 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 60 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 patrol commander.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 process. 
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 LT Joseph Brown, 
Marine Safety Office San Diego, (619) 683-6495.
    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.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

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.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

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.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

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.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

[[Page 1008]]

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.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

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 proposing to establish a 
security zone. A ``Categorical Exclusion Determination'' is available 
in the docket for inspection or copying where indicated under 
ADDRESSES.
    We received no letters commenting on this section and have 
therefore made no changes to the regulatory text related to this 
subject.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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.  165.1108 to read as follows:


Sec.  165.1108  Security Zones; Cruise Ships, Port of San Diego, 
California.

    (a) Definition. ``Cruise ship'' as used in this section means a 
passenger vessel, except for a ferry, 100 gross tons or more, 
authorized to carry more than 12 passengers for hire; capable of making 
international voyages lasting more than 24 hours, any part of which is 
on the high seas; and for which passengers are embarked, disembarked or 
at a port of call in the San Diego port.
    (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 within the San Diego port area inside the sea 
buoys bounding the port of San Diego.
    (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 at any berth within the San Diego port area inside the sea buoys 
bounding the Port of San Diego; and
    (3) All waters, extending from the surface to the sea floor, within 
a 100 yard radius around any cruise ship that is underway on the waters 
inside the sea buoys bounding the Port of San Diego.
    (c) Regulations. (1) In accordance with the general regulation in 
Sec.  165.33 of the part, entry into or remaining in these zones is 
prohibited unless authorized by the Coast Guard Captain of the Port, 
San Diego or his designated representative.
    (2) Persons desiring to transit the area of the security zones may 
contact the Captain of the Port at telephone number (619) 683-6495 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.
    (d) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, 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 zones by the San Diego Harbor Police.

    Dated: December 13, 2002.
S. P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 03-315 Filed 1-7-03; 8:45 am]
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