[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Rules and Regulations]
[Pages 8817-8821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4209]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 
necessary security measures and are intended to protect the public and 
ports from potential

[[Page 8818]]

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: This rule is effective March 29, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket 03-002 and are 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:

Regulatory Information

    On December 31, 2002, we published a final rule entitled ``Security 
Zones, San Francisco Bay, CA'' in the Federal Register (67 FR 79854) 
creating section 165.1183 of title 33 of the Code of Federal 
Regulations (CFR), setting forth security zones for cruise ships and 
tank vessels. On November 12, 2003, we published a notice of proposed 
rulemaking (NPRM) entitled ``Security Zones; San Francisco Bay, 
California'' in the Federal Register (68 FR 64038), proposing to amend 
section 165.1183 to include HIV's as protected vessels, along with 
cruise ships and tank vessels. We received one letter commenting on the 
proposed rule. No public hearing was requested, and none was held.
    On February 27, 2003, we published a rule in the Federal Register 
(68 FR 9003) creating temporary section 165.T11-077 of title 33 of the 
Code of Federal Regulations (CFR). Under temporary section 165.T11-077, 
which expired at 11:59 p.m. P.s.t. on May 31, 2003, the Coast Guard 
established 100-yard security zones around all High Interest Vessels 
(HIV's) that entered, were moored in, anchored in or departed from the 
San Francisco Bay and Delta ports.
    On May 30, 2003, a change in effective period temporary rule was 
published in the Federal Register (68 FR 32368) under the same previous 
temporary section 165.T11-077, which expired at 11:59 p.m. P.d.t. on 
September 30, 2003.
    On September 26, 2003, another change in effective period temporary 
rule was published in the Federal Register (68 FR 55445) under the same 
previous temporary section 165.T11-077, which is set to expire at 11:59 
p.m. P.s.t. on March 31, 2004. The Captain of the Port has determined 
that the need for continued security regulations exits. Accordingly, 
this final rule creates a permanent regulation for security zones in 
the same locations covered by the temporary final rule published on 
February 27, 2003 (68 FR 9003), which was later extended by two other 
rules published in the Federal Register on May 30, 2003 (68 FR 32368), 
and September 26, 2003 (68 FR 55445).
    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 46.9[min] N, 122 
35.4[min] W & 37 46.5[min] N, 122 
35.2[min] 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 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 46.9[min] N, 122 
35.4[min] W & 37 46.5[min] N, 122 
35.2[min] 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 rule 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.
    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.

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 
the conflict in 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.
    The threat of maritime attacks is real as evidenced by the attack 
on the USS Cole and the subsequent attack in October 2002 against a 
tank vessel off the coast of Yemen. These threats 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). The U.S. Maritime 
Administration (MARAD) in Advisory 02-07 advised U.S. shipping 
interests to maintain a heightened status 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. The ongoing foreign 
hostilities have made it prudent for U.S. ports and waterways to be on 
a higher state of alert because the Al-Qaeda organization and other 
similar organizations have declared and 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,

[[Page 8819]]

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 establishing permanent security zones 
around and under HIV's 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 HIV's. 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.

Discussion of Comments and Changes

    No public hearing was requested, and none was held. We received one 
letter on the proposed rule, which recommended that we establish a 
standardized means for vessels to transmit the existence of a security 
zone using their Automatic Identification System (AIS). Although AIS 
may be used in the future to include security zone information, the 
system and policies on how AIS will be used are still being developed. 
In addition, a Coast Guard or other law enforcement vessel will 
normally be present to escort HIVs. In addition to informing nearby 
vessels of the existence of the security zone, the escort boat provides 
a visual indication that a security zone is being enforced. Therefore, 
we did not change the final rule based on this comment and will 
implement the provisions of the proposed rule as written. The comment 
received regarding incorporation of security zone information in AIS 
data will be forwarded to the appropriate office at Coast Guard 
Headquarters for consideration in AIS technology development and 
implementation.

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 regulation 
restricts access to the zones, the effect of this regulation is not 
significant because: (i) The zones encompass only a small portion of 
the waterway; (ii) vessels are able to pass safely around the zones; 
(iii) vessels will 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 these zones is the minimum necessary to provide 
adequate protection for HIV's, their crews and passengers, other 
vessels operating in the vicinity of HIV's, 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 are only effective during HIV 
transits, which last 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: 
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 has 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 (Pub. L. 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.
    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

[[Page 8820]]

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.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. An ``Environmental Analysis Check List'' and a ``Categorical 
Exclusion Determination'' (CED) 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 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--
    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.
    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.
    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.
    (b) Locations. 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 
3746.9' N, 12235.4' W and 
37 46.5' N, 122 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 3746.9' N, 
12235.4' W and 3746.5' N, 
12235.2' W, respectively); and
    (3) Zones for vessels underway. 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 underway shoreward of the line drawn between San Francisco Main Ship 
Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 
3746.9' N, 12235.4' W and 
3746.5' N, 12235.2' 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 transit the area. 
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.



[[Page 8821]]


    Dated: January 28, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-4209 Filed 2-25-04; 8:45 am]
BILLING CODE 4910-15-P