[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32368-32371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13696]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-002]
RIN 1625-AA00


Security Zones; San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is revising the effective period of 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

[[Page 32369]]

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: The amendment to Sec.  165.T11-077(f) in this rule is effective 
May 30, 2003. Section 165.T11-077, added at 68 FR 9003, February 27, 
2003, effective from 11:59 p.m. PST on February 10, 2003, to 11:59 p.m. 
PDT on May 31, 2003, as amended in this rule, is extended in effect to 
11:59 p.m. PDT on September 30, 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 Doug Ebbers, Waterways 
Branch U.S. Coast Guard Marine Safety Office San Francisco Bay, at 
(510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 27, 2003, we published a temporary final rule (TFR) for 
High Interest Vessels (HIVs) in San Francisco Bay and Delta ports 
entitled ``Security Zones; San Francisco Bay, CA'' in the Federal 
Register (68 FR 9003) under Sec.  165.T11-077. It has been in effect 
since February 10, 2003 and is set to expire 11:59 p.m. PDT on May 31, 
2003.
    We did not publish a notice of proposed rulemaking (NPRM) this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. In addition, 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, for the following reasons. 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.
    The original temporary final rule was urgently required to prevent 
possible terrorist strikes against the United States and more 
specifically the people, waterways, and properties in and near the San 
Francisco and Delta ports. It was anticipated that we would assess the 
security environment at the end of the effective period to determine 
whether continuing security precautions were required and, if so, 
propose regulations responsive to existing conditions. We have 
determined that the need for continued security regulations exists.
    We plan to publish a notice of proposed rulemaking (NPRM) for a 
permanent HIV security zone. In this NPRM, 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 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.
    The measures contemplated by this extension to the original 
temporary final rule are intended to facilitate ongoing response 
efforts and prevent future terrorist attack. The Coast Guard will 
utilize the extended effective period created by this TFR 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. Therefore, the public will still 
have the opportunity to comment on this rule. This revision preserves 
the status quo within the Ports while permanent regulations are 
developed.

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 
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 extending the effective period of 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.
    As of today, the need for security zones around HIVs still exists. 
This temporary final rule will extend the

[[Page 32370]]

effective period of security zones that were set to expire May 31, 
2003, for 4 months--from May 31, 2003, to September 30, 2003. This will 
allow the Coast Guard time to publish a notice of proposed rulemaking 
(NPRM) in the Federal Register, which will include a public comment 
period, and for a final rule to be put into effect without there being 
an interruption in the protection provided by HIV security zones.

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, under 
docket COTP San Francisco Bay 03-003 will propose to amend section 
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 HIV security zones 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 regulation, the Coast Guard is extending the effective 
period of the current security zones around all HIVs that are anchored, 
moored or underway within the San Francisco Bay and Delta ports. A 
security zone is automatically 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 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 Homeland 
Security (DHS).
    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 (Public Law 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

[[Page 32371]]

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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because we are establishing a security 
zone.
    Under figure 2-1, paragraph (34)(g), of the Instruction, an 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' will be available in the docket 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.

0
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

0
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; Department of Homeland Security 
Delegation No. 0170.


0
2. Revise temporary Sec.  165.T11-077(f), to read as follows:


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

* * * * *
    (f) Effective Dates. This section is effective at 11:59 p.m. PST on 
February 10, 2003, and will terminate at 11:59 p.m. PDT on September 
30, 2003.

    Dated: May 19, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-13696 Filed 5-28-03; 1:57 pm]
BILLING CODE 4910-15-P