[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Proposed Rules]
[Pages 64038-64041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28329]


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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, California

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish moving and fixed 
security zones extending 100 yards around and under all High Interest 
Vessels (HIVs) located in the San Francisco Bay and Delta ports, 
California. These security zones are necessary security measures and 
are intended to protect the public and ports from potential subversive 
acts. Entry into these security zones would be prohibited, unless 
specifically authorized by the Captain of the Port San Francisco Bay, 
or his designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before January 12, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California 94501. The Waterways 
Management Branch maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be available for inspection or 
copying at the Waterways Management Branch between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Francisco Bay 03-002), indicate the specific section of this document 
to which each comment applies, and give the reason for each comment. 
Please submit all comments and related material in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know that your submission reached us, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Management Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

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 Al-Qaeda and other organizations have declared an ongoing

[[Page 64039]]

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 proposed rulemaking, to address the 
aforementioned security concerns and to take steps to prevent the 
catastrophic impact that a terrorist attack against a High Interest 
Vessel (HIV) would have on the public interest, the Coast Guard is 
proposing to establish permanent security zones around and under HIVs 
entering, departing, moored or anchored within the San Francisco Bay 
and Delta ports. These security zones would help the Coast Guard 
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 communities, security zones are 
prudent for these types of vessels.
    On February 10, 2003, we issued a rule under docket COTP San 
Francisco Bay 03-002 and published this rule in the Federal Register 
(68 FR 9003, February 27, 2003) creating temporary section 165.T11-077 
of Title 33 of the Code of Federal Regulations (CFR). Under temporary 
section 165.T11-077, the Coast Guard established 100-yard moving and 
fixed security zones around all HIVs that are anchored, moored or 
underway within the San Francisco Bay and Delta ports.
    Though temporary section 165.T11-077 expired at 11:59 p.m. P.s.t. 
on May 31, 2003, it was effectively and seamlessly extended by a change 
in effective period temporary rule that was issued on May 19, 2003. 
This change in the effective period of the temporary rule is found 
under docket COTP San Francisco Bay 03-002 and was published in the 
Federal Register (68 FR 32368, May 30, 2003), under the same previous 
temporary section 165.T11-077, and extended the rule to 11:59 p.m. 
P.d.t. on September 30, 2003. On September 11, 2003, a second change in 
effective period temporary rule was issued, under docket COTP San 
Francisco Bay 03-002 and was published (68 FR 55445, September 26, 
2003), under the same previous temporary section 165.T11-077, further 
extending the rule to 11:59 p.m. P.s.t. on March 31, 2004. The Captain 
of the Port has determined there is a need for continued security 
regulations exists.
    We propose to create permanent security zones in the same areas 
currently protected by temporary security zones under Sec.  165.T11-
077. Our proposed rule would amend Sec.  165.1183, Security Zones; 
Cruise Ships and Tank Vessels, San Francisco Bay and Delta ports, 
California (see 67 FR 79856, December 31, 2002), which contains 
permanent security zones for cruise ships and tank vessels. In this 
NPRM, the Coast Guard is proposing to amend Sec.  165.1183 to include 
HIVs as protected vessels along with cruise ships and tank vessels. The 
Coast Guard will utilize the extended effective period of the Sec.  
165.T11-077 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.

Discussion of Proposed Rule

    The Coast Guard proposes to establish 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 in the San Francisco Bay and Delta ports. 
When activated, this security zone would 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.
    These security zones are needed for national security reasons to 
protect HIVs, the public, transiting vessels, adjacent waterfront 
facilities and the ports from potential subversive acts, accidents or 
other events of a similar nature. Entry into these zones would be 
prohibited unless specifically authorized by the Captain of the Port or 
his designated representative.
    Vessels or persons violating this section would 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.
    The Captain of the Port would 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 proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. Although this proposed rule 
restricts access to the waters encompassed by the security zones, the 
effect of this proposed rule

[[Page 64040]]

would not be significant because: (i) The zones would encompass only a 
small portion of the waterway; (ii) vessels would 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 size of the proposed zones are the minimum necessary to provide 
adequate protection for HIVs, their crews and passengers, other vessels 
operating in the vicinity of HIVs, adjoining areas and the public. The 
entities most likely to be affected are commercial vessels transiting 
the main ship channel en route to the San Francisco Bay and Delta ports 
and pleasure craft engaged in recreational activities and sightseeing. 
The proposed security zones would 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 
would only be effective during HIV transits, which would last for 
approximately 30 minutes.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 
owners and operators of private and commercial vessels, some of which 
may be small entities, intending to transit or anchor in the small 
portions of the waterway that are affected by these security zones. The 
proposed security zones would not have a significant economic impact on 
a substantial number of small entities for several reasons: 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 would have ample room to maneuver 
around the security zones. Small entities and the maritime public would 
be advised of these security zones via public notice to mariners.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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. 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 Lieutenant Doug 
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety 
Office San Francisco Bay, (510) 437-3073.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed 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 proposed 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 proposed rule under Commandant Instruction 
M16475.lD, 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

[[Page 64041]]

documentation because we are establishing a security zone.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) are available in the 
docket where indicated under ADDRESSES. Comments on this section will 
be considered before we make the final decision on whether the rule 
should be categorically excluded from further environmental review.

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 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. 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.

    2. Revise Sec.  165.1183 to read as follows:


Sec.  165.1183  Security Zones; Cruise Ships, Tank Vessels and High 
Interest Vessels, San Francisco Bay and Delta ports, California.

    (a) Definitions. As used in this section--
    (1) Cruise ship 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.
    (2) Tank vessel means any self-propelled tank ship that is 
constructed or adapted primarily to carry oil or hazardous material in 
bulk as cargo or cargo residue in the cargo spaces. The definition of 
tank ship does not include tank barges.
    (3) High Interest Vessel or HIV 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) Zones for anchored vessels. All waters, extending from the 
surface to the sea floor, within 100 yards ahead, astern and extending 
100 yards along either side of any cruise ship, tank vessel or 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) Zones for moored or mooring vessels. 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 cruise 
ship, tank vessel or 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) Zones for vessels underway. All waters of the San Francisco Bay 
and Delta port areas, extending from the surface to the sea floor, 
within 100 yards ahead, astern and extending 100 yards along either 
side of any cruise ship, tank vessel or 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 415-399-3547 or on 
VHF-FM channel 16 (156.8 MHz) to seek permission to do so. 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, tank vessel or 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 cruise ship, 
tank vessel or 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, 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: October 24, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-28329 Filed 11-10-03; 8:45 am]
BILLING CODE 4910-15-P