[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Rules and Regulations]
[Pages 30203-30206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12008]


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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: Final rule.

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SUMMARY: The Coast Guard is designating 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 Liquefied Hazardous Gas (LHG) 
from anchoring in the San Francisco Bay area and requiring them to 
proceed directly to their intended offload facility. By establishing 
these requirements, this rule limits the amount of time vessels 
carrying LHG spend in the heavily populated San Francisco Bay area in 
order to reduce the chances that vessels carrying LHG could be subject 
to a terrorist attack or involved in an accident within these waters.

DATES: This rule is effective June 28, 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 CGD11 04-001, and are available for inspection or 
copying at the Waterways Branch of the Marine Safety Office San 
Francisco Bay, Coast Guard

[[Page 30204]]

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 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 19, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Regulated Navigation Area; San Francisco Bay, San 
Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin 
River, and Connecting Waters, CA'' in the Federal Register (69 FR 
7717). In that NPRM, we proposed to designate the listed waters as a 
Regulated Navigation Area for the purposes of prohibiting vessels 
carrying LHG from anchoring, requiring them to proceed directly to 
their intended offload facility, and thereby limiting the amount of 
time these vessels remained within the heavily populated San Francisco 
Bay area. We did not receive any letters commenting on the proposed 
rule. No public hearing was requested, and none was held. We did make 
one small change in this final rule to expand the definition of LHG to 
include the hazards normally associated with liquefied hazardous gas.

Penalties for Violating the Regulated Navigation Area

    Vessels or persons violating the precepts of this regulated 
navigation area 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 
regulated navigation area described herein, is punishable by civil 
penalties (not to exceed $32,500 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 this regulated navigation area 
and may enlist the aid and cooperation of any Federal, State, county, 
municipal, or 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).
    Additionally, 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.
    Collectively, the items noted in the previous discussion represent 
a hazardous condition threatening the safety of the port and its 
facilities as well as other users of the waterway. Further, 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 rulemaking, to address the aforementioned 
security and safety concerns and to take steps to prevent a terrorist 
incident involving vessels carrying Liquefied Hazardous Gas (LHG), the 
Coast Guard is designating 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 rule codifies the 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.
    This regulated navigation area is needed to protect the public, 
ports, and the environment from the potential damage that would be 
caused if an LHG vessel were to become the target of a subversive act 
or be involved in an accident or other event of a similar nature. 
Prohibiting vessels carrying LHG from anchoring unless specifically 
authorized to do otherwise by the Captain of the Port or his designated 
representative will limit the amount of time these vessels are underway 
in the San Francisco Bay area and reduce the

[[Page 30205]]

associated potential hazards posed by their cargo. Due to heightened 
security concerns and the catastrophic impact a terrorist attack on a 
vessel carrying LHG would have on the vessel, crew, surrounding area 
and the public, the regulations established by this rule are prudent 
for this location.

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).
    Although this regulation prohibits LHG vessels from anchoring 
within the regulated navigation area and requires them to proceed 
directly to their intended offload facility, the effect of this 
regulation is not 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 rule is a continuation of the established policy of 
prohibiting LHG vessels from anchoring in the San Francisco Bay area, 
and having it published simply removes the need to issue a COTP order 
each time an LHG vessel enters the bay. In addition, LHG vessels will 
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 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 the rule only effects LHG vessels within San Francisco 
Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San 
Joaquin River, and connecting waters in California, it allows these 
vessels to complete their intended purpose of delivering LHG cargo, and 
the rule is a continuation of a policy that has been in effect since 
September of 2001.

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 1-800-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 might 
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 Regulated Navigation Area. 
An ``Environmental Analysis Check List'' and a draft ``Categorical 
Exclusion Determination'' (CED) will be

[[Page 30206]]

available in the docket where located under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record-
keeping requirements, 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. 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) Definitions. ``Liquefied hazardous gas (LHG)'' is 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. The hazards normally associated with these 
products include toxic or flammable properties or a combination of 
both.
    (c) Regulations. All vessels loaded with a cargo of liquefied 
hazardous gas (LHG) within this Regulated Navigation Area 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.
    (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: May 17, 2004.
Kevin J. Eldridge,
Rear Admiral, U.S. Coast Guard, District Commander, Eleventh Coast 
Guard District.
[FR Doc. 04-12008 Filed 5-26-04; 8:45 am]
BILLING CODE 4910-15-P