[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 9003-9006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4634]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-002]
RIN 2115-AA97


Security Zones; San Francisco Bay, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing moving and fixed security 
zones extending 100 yards around and under all High Interest Vessels 
(HIVs) that enter, are moored in, anchored in or depart from the San 
Francisco Bay and Delta ports, California. These security zones are 
needed for national security reasons to protect the public and ports 
from potential subversive acts. Entry into these security zones is 
prohibited, unless specifically authorized by the Captain of the Port 
San Francisco Bay, or his designated representative.

DATES: This regulation is effective from 11:59 p.m. PST on February 10, 
2003 to 11:59 p.m. PST on May 31, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP San Francisco Bay 03-002] and are 
available for inspection or copying at Coast Guard Marine Safety Office 
San Francisco Bay, 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, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    In addition to this temporary final rule (TFR), we plan to publish 
a notice of proposed rulemaking (NPRM) for a permanent HIV security 
zone rule [COTP San Francisco Bay 03-003], in which we will propose to 
amend 33 CFR 165.1183, which was added by the Final rule [COTP San 
Francisco Bay 02-019] published in the Federal Register (67 FR 79854) 
on December 31, 2002. 33 CFR Sec.  165.1183, ``Security Zones; Cruise 
Ships and Tank Vessels, San Francisco Bay and Delta ports, 
California'', establishes security zones around cruise ships and tank 
vessels, but does not address HIVs. The forthcoming NPRM will clarify 
the classes of vessels sought to be encompassed in the section and

[[Page 9004]]

will allow for a public comment period and for a final rule to be put 
into effect without an interruption in the protection provided by this 
temporary rule establishing HIV security zones. Section 165.1183 will 
remain in effect until amended by a future rule. Under 5 U.S.C. 
553(b)(B), for reasons discussed below, the Coast Guard finds that good 
cause exists for not publishing an NPRM before issuing this temporary 
rule. Also, 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 October 2002 attack of a tank 
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 
United States. 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). As a result, a heightened level of security has 
been established around all HIVs in San Francisco Bay and Delta ports. 
Additionally, the measures contemplated by this rule are intended to 
prevent future terrorist attacks against individuals and facilities 
within or adjacent to HIVs. Any delay in the effective date of this TFR 
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 to 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 an HIV would have on the public 
interest, the Coast Guard is establishing security zones around and 
under HIVs entering, departing, 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 HIVs. Due to these heightened security concerns, and the 
catastrophic impact a terrorist attack on an HIV would have on the crew 
and passengers on board, and surrounding area and communities, security 
zones are prudent for these types of vessels.

Discussion of Rule

    On December 31, 2002, we published the final rule [COTP San 
Francisco Bay 02-019] adding Sec.  165.1183, ``Security Zones; Cruise 
Ships and Tank Vessels, San Francisco Bay and Delta ports, California'' 
in the Federal Register (67 FR 79854). That section set forth security 
zones for cruise ships and tank vessels. A forthcoming NPRM (COTP San 
Francisco Bay 03-003) will propose to amend Sec.  165.1183 to include 
HIVs as protected vessels in that section, along with cruise ships and 
tank vessels. The Coast Guard will utilize the extended effective 
period of the NPRM to engage in notice and comment rulemaking to 
develop permanent regulations tailored to the present and foreseeable 
security environment with the Captain of the Port (COTP) San Francisco 
Bay.
    In this temporary rule, the Coast Guard is establishing moving and 
fixed security zones around all HIVs that are anchored, moored or 
underway within the San Francisco Bay and Delta ports. These security 
zones are activated when any HIV passes 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 & 37[deg]46.5'N, 
122[deg]35.2'W, respectively) and remains in effect while the vessel is 
underway, anchored or moored within the San Francisco Bay and Delta 
ports. When activated, this security zone will encompass all waters, 
extending from the surface to the sea floor, within 100 yards ahead, 
astern and extending 100 yards along either side of any HIV in the San 
Francisco Bay and Delta ports. This security zone is automatically 
deactivated when the HIV passes seaward 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 & 37[deg]46.5'N, 122[deg]35.2'W, 
respectively) on its departure from port. Vessels 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.
    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, 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, and a civil penalty 
of not more than $25,000 for each day of a continuing violation.
    The Captain of the Port will enforce these zones and may enlist the 
aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the enforcement of the regulation. This 
regulation is proposed under the authority of 33 U.S.C. 1226 in 
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 
1231.

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

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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).
    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 HIVs, their crews and passengers, other vessels 
operating in the vicinity of HIVs, their crews and passengers, 
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 an HIV in 
the main ship channels, effectively prohibiting use of the channels. 
However, the moving security zones will only be effective during HIV 
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. The security zones will not have a significant economic 
impact on a substantial number of small entities for several reasons: 
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 zones to engage in these 
activities. When a HIV is at anchor, vessel traffic will have ample 
room to maneuver around the security zones. Small entities and the 
maritime public will be advised of these security zones via public 
notice to mariners.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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 because we are establishing a security 
zone. A ``Categorical Exclusion Determination'' is available in the 
docket for inspection

[[Page 9006]]

or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and record 
keeping 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.T11-077 to read as follows:


Sec.  165.T11-077  Security Zones; High Interest Vessels, San Francisco 
Bay and Delta ports, California.

    (a) Definition. ``High Interest Vessel'' or ``HIV'' as used in this 
section, means any vessel deemed by the Captain of the Port or higher 
authority as a vessel requiring protection based upon risk assessment 
analysis of the vessel and is therefore escorted by a Coast Guard or 
other law enforcement vessel with an embarked Coast Guard commissioned, 
warrant, or petty officer.
    (b) Location. The following areas are security zones:
    (1) All waters, extending from the surface to the sea floor, within 
100 yards ahead, astern and extending 100 yards along either side of 
any HIV 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 100 yards ahead, astern and extending 100 yards 
along either side of any HIV 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 
100 yards ahead, astern and extending 100 yards along either side of 
any HIV 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 an HIV 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 HIV'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 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 zone by local law enforcement as 
necessary.
    (f) Effective Dates. This section becomes effective at 11:59 p.m. 
PST on February 10, 2003, and will terminate at 11:59 p.m. PST on May 
31, 2003.

    Dated: February 10, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-4634 Filed 2-26-03; 8:45 am]
BILLING CODE 4910-15-P