[Federal Register Volume 68, Number 187 (Friday, September 26, 2003)]
[Rules and Regulations]
[Pages 55445-55448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24365]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

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


Security Zones; San Francisco Bay, California

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is revising the enforcement 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 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 
September 30, 2003. Section 165.T11-077, added at 68 FR 9006, February 
27, 2003, and amended at 68 FR 32368, effective from 11:59 p.m. PST on 
February 10, 2003, to 11:59 p.m. PDT on September 30, 2003, as amended 
in this rule, is extended in effect to 11:59 p.m. PST on March 31, 
2004.

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. On May 30, 2003, we published a change in 
effective period in the Federal Register (68 FR 32368) that extended 
the effective period of the above temporary final rule (TFR) to 
September 30, 2003.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Additionally, 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. 
Therefore, delaying the effective date of this extension to the 
existing security zone would be contrary to the public interest since 
the safety and security of the people, ports, waterways, and properties 
of San Francisco Bay and Delta Ports areas would be jeopardized without 
the protection afforded by these security zones. The measures 
contemplated by this extension are intended to facilitate ongoing 
response efforts and prevent future terrorist attack. Any delay in 
implementing this rule would be contrary to the public interest since 
immediate action is necessary to ensure the protection of all HIVs, 
their crews, the public and national security.
    We plan to publish a notice of proposed rulemaking (NPRM) for a 
permanent HIV security zone. In that NPRM, we will propose to amend 33 
CFR 165.1183, which was added by a final rule [COTP San Francisco Bay 
02-019] published in the Federal Register (67 FR 79854) on December 31, 
2002. 33

[[Page 55446]]

CFR 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 the original temporary rule that established 
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, 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 for 6 months the effective period 
of security zones that were set to expire September 30, 2003. The 
security zones will now expire on March 31, 2003. This will allow the 
Coast Guard time to publish a notice of proposed rulemaking 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 03-002 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 created by the 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.
    This TFR extends 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 and 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 and 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

[[Page 55447]]

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 waters encompassed 
by the security 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. As discussed above, the security zones will affect the 
following entities some of which may be small entities: the owners and 
operators of vessels intending to transit or anchor in a portion of the 
waterways encompassed by the zones. 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. In 
addition, vessels may receive authorization to transit through these 
security zones on a case-by-case basis. 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 offered 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. 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

[[Page 55448]]

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.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are 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.

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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

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


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

* * * * *
    (f) Effective period. This section is effective at 11:59 p.m. PST 
on February 10, 2003, and will terminate at 11:59 p.m. PST on March 31, 
2004.

    Dated: September 11, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-24365 Filed 9-25-03; 8:45 am]
BILLING CODE 4910-15-P