[Federal Register Volume 69, Number 2 (Monday, January 5, 2004)]
[Rules and Regulations]
[Pages 268-271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-30]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Los Angeles-Long Beach 01-013]
RIN 1625-AA00


Security Zone; Port Hueneme Harbor, Ventura County, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period; request for 
comments.

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SUMMARY: The Coast Guard is revising the effective period for a 
temporary security zone covering all waters within Port Hueneme Harbor 
in Ventura County, CA. This security zone is needed for national 
security reasons to protect Naval Base Ventura County and commercial 
port from potential subversive acts. Entry into this zone is prohibited 
unless specifically authorized by the Captain of the Port Los Angeles-
Long Beach, the Commanding Officer of Naval Base Ventura County, or 
their designated representatives.

DATES: Effective December 15, 2003. Section 165.T11-060, added at 67 FR 
1099, January 9, 2002, effective from 12:01 a.m. PST on December 21, 
2001, to 11:59 p.m. PDT on June 15, 2002, extended June 10, 2003, at 68 
FR 36747, June 19, 2003, until 11:59 p.m. PST on December 15, 2003, as 
amended by this

[[Page 269]]

rule is effective through June 15, 2004. Comments and related material 
must reach the Coast Guard on or before February 4, 2004.

ADDRESSES: You may mail comments and related material to docket COTP 
Los Angeles-Long Beach 01-013, U.S. Coast Guard Marine Safety Office/
Group Los Angeles-Long Beach, 1001 South Seaside Avenue, Building 20, 
San Pedro, California, 90731. The Marine Safety Office/Group Los 
Angeles-Long Beach, 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 this address between 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Ryan Manning, Chief of 
Waterways Management Division, at (310) 732-2020.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to comment on this rule. If you submit comments 
and related material, please include your name and address, identify 
the docket number for this rulemaking (COTP Los Angeles-Long Beach 01-
013), 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 
they 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 rule in view of them.

Regulatory Information

    On January 9, 2002, we published a temporary final rule for Port 
Hueneme Harbor entitled ``Security Zone; Port Hueneme Harbor, Ventura 
County, CA'' in the Federal Register (67 FR 1097) under Sec.  165.T11-
060. The effective period for this rule was from December 21, 2001, 
through June 15, 2002.
    On June 18, 2002, we published a temporary final rule for Port 
Hueneme Harbor entitled ``Security Zone; Port Hueneme Harbor, Ventura 
County, CA'' in the Federal Register (67 FR 41341) under Sec.  165.T11-
060. The effective period was extended through June 15, 2003. On June 
10, 2003, the Captain of the Port issued another temporary final rule 
extending the effective period until 11:59 p.m. PST on December 15, 
2003 (68 FR 36745, June 19, 2003).
    This temporary final rule further extends the effective period 
through June 15, 2004.
    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. Due to the terrorist attacks 
on September 11, 2001 and the warnings given by national security and 
intelligence officials, there is an increased risk that further 
subversive or terrorist activity may be launched against the United 
States. A heightened level of security has been established around 
Naval Facilities. The original TFR was urgently required to prevent 
possible terrorist strikes against the United States and more 
specifically the people, waterways, and properties in Port Hueneme 
Harbor and the Naval Base Ventura County. 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 the need for continued security 
regulations exists.
    The Coast Guard has determined that designation of a restricted 
area by the Army Corps of Engineers (ACOE) under 33 CFR part 334 is a 
more appropriate regulation in this case. On January 13, 2003, ACOE 
published a notice of proposed rulemaking for Port Hueneme Harbor 
entitled ``United States Navy Restricted Area, Naval Base Ventura 
County, Port Hueneme, CA'' in the Federal Register (68 FR 1791) under 
33 CFR 334.1127. The ACOE will utilize the extended effective period of 
this TFR to issue a final rule. This TFR preserves the status quo 
within the harbor while a permanent restricted area is implemented.
    For the reasons stated in the paragraphs above under 5 U.S.C. 
553(d)(3), the Coast Guard also finds that good cause exists for making 
this rule effective less than 30 days after publication in the Federal 
Register.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on commercial 
and public structures--the World Trade Center in New York and the 
Pentagon in Arlington, Virginia--killing large numbers of people and 
damaging properties of national significance. There is an increased 
risk that further subversive or terrorist activity may be launched 
against the United States based on warnings given by national security 
and intelligence officials. The Federal Bureau of Investigation (FBI) 
has issued warnings on October 11, 2001 and February 11, 2002 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Iraq and 
Afghanistan have made it prudent for important facilities and vessels 
to be on a higher state of alert because Osama Bin Ladin and his Al 
Qaeda organization, and other similar organizations, have publicly 
declared an ongoing intention to conduct armed attacks on U.S. 
interests worldwide.
    These heightened security concerns, together with the catastrophic 
impact that a terrorist attack against a Naval Facility would have to 
the public interest, makes these security zones prudent on the 
navigable waterways of the United States. To mitigate the risk of 
terrorist actions, the Coast Guard has increased safety and security 
measures on the navigable waterways of U.S. ports and waterways as 
further attacks may be launched from vessels within the area of Port 
Hueneme Harbor and the Naval Base Ventura County.
    In response to these terrorist acts, to prevent similar 
occurrences, and to protect the Naval Facilities at Port Hueneme Harbor 
and the Naval Base Ventura County, the Coast Guard has established a 
security zone in all waters within Port Hueneme Harbor. This security 
zone is necessary to prevent damage or injury to any vessel or 
waterfront facility, and to safeguard ports, harbors, or waters of the 
United States in Port Hueneme Harbor, Ventura County, CA.
    As of today, the need for a security zone in Port Hueneme Harbor 
still exists. This temporary final rule will extend the current 
effective date of the current Port Hueneme security zone through June 
15, 2004. This will allow the Army Corps of Engineers to utilize the 
extended effective period of this TFR to complete notice and comment 
rulemaking for permanent regulations tailored to the present and 
foreseeable security environment. This revision preserves the status 
quo within the Port Hueneme Harbor while permanent rules are finalized.

Discussion of Rule

    This regulation that is extending the effective period of the 
current security zone, prohibits all vessels from entering Port Hueneme 
Harbor beyond the COLREGS demarcation line set forth in subpart 80.1120 
of part 80 of Title 33 of the Code of Federal Regulations without first 
filing a proper advance notification of arrival as required by part 160 
of Title 33 of the Code of Federal Regulations as well as obtaining 
clearance from

[[Page 270]]

Commanding Officer, Naval Base Ventura County ``Control 1''.
    In addition to revising paragraph (c) to extend the effective 
period of Sec.  165.T11-060, we have also revised paragraph (b). 
Specifically, in Sec.  165.T11-060(b)(1)(ii) we replaced references to 
temporary notification of arrival requirements with the corresponding 
permanent sections in 33 CFR part 160.
    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 rule described herein, would be 
punishable by civil penalties (not to exceed $27,500 per violation, 
where each day of a continuing violation would be 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 violating this section by using a dangerous weapon 
or by engaging in conduct that causes bodily injury or fear of imminent 
bodily injury to any officer authorized to enforce this regulation 
would also face imprisonment up to 12 years. Vessels or persons 
violating this section would also be 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.
    This rule will be enforced by the Captain of the Port Los Angeles-
Long Beach, who may also enlist the aid and cooperation of any Federal, 
State, county, municipal, and private agencies to assist in the 
enforcement of this rule. Commanding Officer, Naval Base Ventura County 
``Control 1'' will control vessel traffic entering Port Hueneme Harbor. 
This regulation is established 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) because this zone will encompass a small portion of the 
waterway.

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 because this zone will encompass a small portion of the 
waterway.

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.

[[Page 271]]

Environment

    We have analyzed this 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 
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. Section 165.T11-060 is reinstated and revised to read as follows:


Sec.  165.T11-060  Security Zone; Port Hueneme Harbor, Ventura County, 
California.

    (a) Location. The following area is a Security Zone: The water area 
of Port Hueneme Harbor inside of the International Regulations for 
Preventing Collisions at Sea, 1972 (COLREGS) demarcation line.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, the following rules apply to the security 
zone established by this section:
    (i) No person or vessel may enter or remain in this security zone 
without the permission of the Captain of the Port Los Angeles-Long 
Beach, CA, or the Commanding Officer, Naval Base Ventura County CA, 
``Control 1,'';
    (ii) Vessels that are required to make advanced notifications of 
arrival under Sec. Sec.  160.204 through 160.214 of part 160 of Title 
33 of the Code of Federal Regulations continue to make such reports;
    (iii) All vessels must obtain clearance from ``Control 1'' on VHF-
FM marine radio 06 prior to crossing the COLREGS demarcation line at 
Port Hueneme Harbor;
    (iv) Vessels without marine radio capability must obtain clearance 
in advance by contacting ``Control 1'' via telephone at (805) 982-3938 
prior to crossing the COLREGS demarcation line at Port Hueneme Harbor;
    (2) The Captain of the Port will notify the public of this Security 
Zone via broadcast and published notice to mariners.
    (3) Nothing in this section shall be construed as relieving the 
owner or person in charge of any vessel from complying with the rules 
of the road and safe navigation practice.
    (4) The regulations of this section will be enforced by the Captain 
of the Port Los Angeles-Long Beach, the Commanding Officer, Naval Base 
Ventura County or their authorized representatives.
    (c) Effective period. This section is effective from 12:01 a.m. PST 
on December 21, 2001, through June 15, 2004.

    Dated: December 15, 2003.
Peter V. Neffenger,
Captain, U.S. Coast Guard, Captain of the Port, Los Angeles-Long Beach, 
California.
[FR Doc. 04-30 Filed 1-2-04; 8:45 am]
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