[Federal Register Volume 69, Number 33 (Thursday, February 19, 2004)]
[Proposed Rules]
[Pages 7717-7719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3596]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD11-04-001]
RIN 1625-AA11


Regulated Navigation Area; San Francisco Bay, San Pablo Bay, 
Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and 
Connecting Waters, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to designate San Francisco Bay, San 
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin 
River, and the connecting waters as a Regulated Navigation Area for the 
purpose of limiting the amount of time vessels carrying liquefied 
hazardous gas (``LHG'') may remain within these waters. This regulation 
would protect the public and ports within the heavily populated San 
Francisco Bay area by reducing the chances that vessels carrying LHG 
are either subject to a terrorist attack or involved in an accident 
within these waters. Vessels carrying LHG would not be allowed to 
anchor in the San Francisco Bay area and would be required to proceed 
directly to their intended offload facility.

DATES: Comments and related material must reach the Coast Guard on or 
before April 19, 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, at (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 (CGD11-04-
001), 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. The Threat of maritime attacks is real as evidenced by 
the attack on the USS COLE and the subsequent attack in October 2002 
attack against a tank vessel off the coast of Yemen. These attacks 
manifest a 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 aggression continues 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), and Continuation 
of the National Emergency with Respect To Persons Who Commit, Threaten 
To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002).
    Additionally, the U.S. Maritime Administration (MARAD) in Advisory 
02-07 advised U.S. shipping interests to maintain a heightened state of 
alert against possible terrorist attacks. MARAD more recently issued 
Advisory 03-05 informing operators of maritime interests of increased 
threat possibilities to vessels and facilities and a higher risk of 
terrorist attack to the transportation community in the United States. 
Moreover, the ongoing hostilities in Afghanistan and Iraq have made it 
prudent for U.S. ports to be on a higher state of alert because Al-
Qaeda and other organizations have declared an ongoing intention to 
conduct armed attacks on U.S. interests worldwide.
    Due to increased awareness that future terrorist attacks are 
possible, the Coast Guard as lead federal agency for maritime homeland 
security, has determined that the District Commander must have the 
means to deter threats to the port while sustaining the flow of 
commerce. A Regulated Navigation Area is a tool available to the Coast 
Guard that may be used to control vessel traffic through ports, 
harbors, or other waters.
    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 regulated navigation areas, to 
prevent or respond to acts of terrorism against individuals, vessels, 
or public or commercial structures. The Coast Guard also has authority 
to establish regulated navigation areas 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 a 
terrorist incident involving vessels carrying liquefied hazardous gas 
(LHG), the Coast Guard is proposing to designate San Francisco Bay, San 
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin 
River, and the connecting waters as a Regulated Navigation Area for the 
purpose of prohibiting vessels carrying LHG from anchoring or 
unnecessarily remaining within these areas. Since September of 2001, as 
part of the efforts to increase the safety and security of the Port of 
San Francisco Bay, the Captain of the Port (COTP) has been issuing COTP 
Orders to prohibit LHG carrying vessels from anchoring prior to 
discharging their cargo. As such, this proposed rule would codify the

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established policy of prohibiting LHG carrying vessels from anchoring 
in San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, 
Sacramento River, San Joaquin River, and the connecting waters.

Discussion of Proposed Rule

    The proposed rule would designate San Francisco Bay, San Pablo Bay, 
Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and 
the connecting waters as a Regulated Navigation Area. ``Liquefied 
hazardous gas (LHG)'' is defined as a liquid containing one or more of 
the products listed in Table 127.005 of Title 33 of the Code of Federal 
Regulations that is carried in bulk on board a tank vessel as a 
liquefied gas product. The hazards associated with these products 
include toxic or flammable properties or a combination of both.
    This proposed rule is needed for national security reasons to 
protect the public, the port, and the environment from potential 
subversive acts, accidents or other events of a similar nature. 
Prohibiting LHG vessels from anchoring would limit the amount of time 
these vessels are underway in the San Francisco Bay area and would 
reduce the associated potential hazards posed by their cargo. 
Deviations from this rule will 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 rule described herein, would be 
punishable by civil penalties (where each day of a continuing violation 
is a separate violation), criminal penalties (including imprisonment up 
to 6 years) 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 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.
    The Captain of the Port would enforce this regulation and could 
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. The effect of this regulation 
would not be significant because vessels carrying LHG have been 
directed by COTP orders not to anchor within San Francisco Bay, San 
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin 
River, and connecting waters in California since September of 2001. 
Therefore, this proposed rule would be a continuation of the 
established policy of prohibiting LHG vessels from anchoring in the San 
Francisco Bay area, and having it published would simply remove the 
need to issue a COTP order each time an LHG vessel enters the bay. In 
addition, LHG vessels may be allowed to anchor on a case-by-case basis 
with permission of the Captain of the Port, or his designated 
representative.

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. This proposed rule would not have a 
significant economic impact on a substantial number of small entities 
because the rule would only effect LHG vessels within San Francisco 
Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San 
Joaquin River, and connecting waters in California, it would still 
allow these vessels to complete their intended purpose of delivering 
LHG cargo, and the rule would be a continuation of a policy that has 
been in effect since September of 2001.
    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, at (510) 437-3073.

Collection of Information

    This proposed 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 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 will 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

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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 would not be 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 
M16475.1D, 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 proposed rule is categorically excluded, 
under figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because we would be establishing a 
Regulated Navigation Area.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) will be 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, 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. Add Sec.  165.1185, to read as follows:


Sec.  165.1185  Regulated Navigation Area; San Francisco Bay, San Pablo 
Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, 
and connecting waters in California.

    (a) Location. All waters of San Francisco Bay, San Pablo Bay, 
Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and 
connecting waters in California are a Regulated Navigation Area.
    (b) Definition. Liquefied hazardous gas (LHG) means a liquid 
containing one or more of the products listed in Table 127.005 of 33 
CFR 127.005 that is carried in bulk on board a tank vessel as a 
liquefied gas product.
    (c) Regulations. All vessels loaded with a cargo of liquefied 
hazardous gas (LHG) within the Regulated Navigation Area established by 
this section must proceed directly to their intended cargo reception 
facility to discharge their LHG cargo, unless:
    (1) The vessel is otherwise directed or permitted by the Captain of 
the Port. The Captain of the Port can be reached at telephone number 
415-399-3547 or on VHF-FM channel 16 (156.8 MHz). 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; or,
    (2) The vessel is in an emergency situation and unable to proceed 
as directed in paragraph (a) of this section without endangering the 
safety of persons, property, or the environment.

    Dated: January 29, 2004.
Kevin J. Eldridge,
Rear Admiral, U.S. Coast Guard, District Commander, Eleventh Coast 
Guard District.
[FR Doc. 04-3596 Filed 2-18-04; 8:45 am]
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