[Federal Register Volume 69, Number 130 (Thursday, July 8, 2004)]
[Rules and Regulations]
[Pages 41367-41374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15590]



  Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules 
and Regulations  

[[Page 41367]]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 107 and 165

[USCG-2004-17509]
RIN 1625-AA86


Unauthorized Entry Into Cuban Territorial Waters

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard, pursuant to Presidential proclamation and 
order of the Secretary of Homeland Security, and after consultation 
with several Departments and agencies, is requiring U.S. vessels, and 
vessels without nationality, less than 100 meters (328 feet), located 
within the internal waters or the 12 nautical mile territorial sea of 
the United States, that thereafter enter Cuban territorial waters, to 
apply for and receive a Coast Guard permit. In establishing this 
requirement, the Coast Guard is also removing the security zone in the 
coastal waters adjacent to Florida and incorporating many of its 
requirements into this rule. That security zone required non-public 
vessels less than 50 meters (165 feet) that intended to enter Cuban 
territorial waters to receive Coast Guard authorization. This rule is 
necessary to provide for the safety of United States citizens and 
residents who may be subject to excessive force, including deadly 
force, upon entering Cuban territorial waters, to improve enforcement 
of the embargo against the Government of Cuba, and to prevent a 
threatened disturbance of the international relations of the United 
States.

DATES: This rule is effective on July 2, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket 
are part of docket USCG-2004-17509, and are available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, 400 
Seventh Street SW., Washington DC, 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. You may also find this docket on the 
Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Lieutenant Commander Brad Kieserman, Office of Law Enforcement (G-
OPL), U.S. Coast Guard Headquarters, telephone (202) 267-1890. If you 
have questions on viewing the docket, call Andrea M. Jenkins, Program 
Manager, Docket Operations, telephone (202) 366-0271.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    Pursuant to 5 U.S.C. 553(a)(1), we did not publish a notice of 
proposed rulemaking (NPRM) for this regulation. This provision exempts 
traditional notice and comment rulemaking under the Administrative 
Procedure Act ``to the extent that there is involved * * * a military 
or foreign affairs function of the United States.'' The Coast Guard 
finds that immediate establishment of this rule is necessary to protect 
the safety of lives and property at sea, including lives that may be 
endangered by the use of excessive or deadly force by the Government of 
Cuba, to improve enforcement of the economic sanctions against the 
Government of Cuba, and to prevent threatened disturbance of the 
international relations of the United States. This rule is necessary to 
implement U.S. foreign policy and is enforceable using the Coast 
Guard's military assets. Accordingly, this rule involves a military 
function of the United States, and pursuant to section 1 of 
Proclamation 7757, this rule involves a foreign affairs function of the 
United States.
    Even if the requirements of 5 U.S.C. 553 would otherwise be 
applicable, the Coast Guard for good cause finds that, under 5 U.S.C. 
553(b)(B) and (d)(3), notice and public comment on the rule before the 
effective date of the rule and advance publication are impracticable 
and contrary to the public interest. On February 26, 2004, the 
President continued the national emergency relating to Cuba. 69 FR 
9513. Also, on that day, the President, in Proclamation 7757, expanded 
the scope of that emergency and the emergency authority relating to the 
regulation and movement of vessels into Cuban territorial waters. 69 FR 
9515. The President set out twelve reasons why there existed a 
worsening of the threat to U.S. international relations. These reasons 
included a threat of excessive force, including deadly force, against 
persons on board U.S. vessels, and sufficiently grave Cuban government 
actions to warrant a U.S. warning to Cuba that a mass migration would 
be viewed as a hostile act. Thus, the President directed the Secretary 
to take action (69 FR at 9516). Immediate action is needed to protect 
the safety of lives and property at sea, to improve enforcement of the 
economic sanctions against the Government of Cuba, and to prevent 
threatened disturbance to the international relations of the United 
States. This rule is based upon a Presidential declaration of a 
national emergency and order of the Secretary of Homeland Security. 
Opportunity for notice and public comment or advance publication of the 
rule was impracticable because of the need to take immediate action. 
This regulation is tailored to meet the needs of national security and 
the international relations of the United States, with a minimal burden 
on the public.

Background and Purpose

    On March 1, 1996, the President of the United States signed 
Proclamation 6867 (``Proclamation 6867''), declaring a national 
emergency following the February 24, 1996, shooting down of two 
Brothers to the Rescue aircraft by Cuban armed forces (61 FR 8843). In 
Proclamation 6867, which addressed the disturbances or threatened 
disturbances of United States international relations, the President 
authorized the Secretary of Transportation to regulate the anchorage 
and movement of domestic and foreign vessels (61 FR 8843). Order No. 
96-3-7, signed by the Secretary of Transportation, delegated this 
authority to the Commandant, United States Coast Guard (61 FR 9219). 
This authority was further delegated to the Commander, Seventh Coast 
Guard District and appropriate Captains of the Port (61 FR 9219). To 
secure the rights and obligations of the United States and to protect 
its citizens and residents from the use of excessive force upon them by 
foreign powers, the Coast Guard on March 1, 1996 (61 FR 9348), pursuant 
to its regulatory authority in 50 U.S.C. 191 and as supplemented by the 
authority delegated to the Secretary of Transportation in the 
Presidential Proclamation, established a security zone within the 
internal waters and territorial seas of the United States, adjacent to 
or within the coastal waters around southern Florida. This security 
zone prohibited private, noncommercial vessels, including foreign 
vessels, less than 50 meters in length, from departing the security 
zone with the intent to enter Cuban territorial waters, absent express 
authorization from the Captain of the Port (COTP).
    On May 14, 1997 (62 FR 26390), the Coast Guard published a rule 
revising the security zone to prohibit a similar class of vessels from 
getting underway in or departing the security zone with the intent to 
enter Cuban territorial waters without express authorization from the 
COTP. Under the revised security zone, commercial vessels less than 50 
meters in length became subject

[[Page 41368]]

to the same restrictions as private, noncommercial vessels less than 50 
meters in length.
    On July 17, 1998 (63 FR 38476), the Coast Guard published a rule 
again revising the security zone by expanding its geographic scope to 
the Florida peninsula, encompassing all of the internal waters and 
territorial seas of the United States adjacent to or within the State 
of Florida and within the boundaries of the Seventh Coast Guard 
District.
    On November 2, 2000, the Coast Guard revised the security zone to 
better define enforcement and the process for applying for a permit to 
depart the zone (65 FR 65783).
    On February 26, 2004, in Proclamation 7757 (69 FR 9515), the 
President of the United States expanded the scope of the national 
emergency and emergency authority declared in Proclamation 6867, and 
amended the reasons for which there exists a disturbance or threatened 
disturbance of the international relations of the United States. In 
Proclamation 7757, the President declared, inter alia, that: The United 
States has determined that Cuba is a state sponsor of terrorism; the 
Cuban government has demonstrated a ready and reckless willingness to 
use excessive force, including deadly force, against U.S. citizens and 
its own citizens; the entry of U.S.-registered vessels into Cuban 
territorial waters could result in injury to, or loss of life of, 
persons engaged in such conduct; Cuba has impounded U.S.-flagged 
vessels and forced them as a condition of release to violate U.S. laws; 
the objectives of the United States policy regarding Cuba are the end 
of the dictatorship and a rapid, peaceful transition to a 
representative democracy respectful of human rights and characterized 
by an open market economic system; a critical initiative to advance 
U.S. objectives is to deny resources to the repressive Cuban 
government; and the Cuban government has recently and over the last 
year taken a series of steps to destabilize relations with the United 
States, causing a sudden and worsening disturbance of U.S. 
international relations.
    Consequently, the President has determined that the unauthorized 
entry of U.S.-registered vessels and vessels subject to the 
jurisdiction of the U.S. (which includes, but is not limited to, 
vessels without nationality pursuant to 46 U.S.C. App. 1903) into Cuban 
territorial waters is detrimental to the foreign policy of the United 
States, which is to deny monetary and material support to the 
repressive Government of Cuba, and that such unauthorized entries could 
threaten a disturbance of the international relations of the United 
States by facilitating Cuban government support of terrorism, the use 
of excessive or deadly force, and the continued existence of the Cuban 
government. Thus, the President continued and expanded the basis for 
continuing the declared emergency and the finding of a threatened 
disturbance of the international relations of the United States to 
include the unauthorized entry of certain vessels of the United States 
into Cuban territorial waters.
    We have placed in the docket a copy of the President's Rose Garden 
Statement of October 10, 2003, in which the President announced new 
initiatives to strengthen enforcement of trade and travel restrictions 
with respect to Cuba. This announcement is in furtherance of long-
standing U.S. foreign policy to bring about in Cuba the peaceful 
transition to democracy.
    The United States imposes economic sanctions against Cuba to 
restrict the flow of currency transactions and goods to Cuba. The U.S. 
Department of Treasury's Office of Foreign Assets Control (OFAC) 
regulates transactions involving Cuba, and the U.S. Department of 
Commerce, Bureau of Industry and Security (BIS) regulates exports, 
including ships and ship-stores.
    Among other things, Proclamation 7757 authorizes the Secretary of 
Homeland Security (``the Secretary'') to issue rules and regulations to 
ensure that Coast Guard decisions regarding entry of U.S. vessels into 
Cuban territorial waters are made in a manner consistent with the 
decisions of other agencies responsible for economic sanctions 
enforcement. Specifically, in section 1 of Proclamation 7757, the 
President authorized the Secretary to make rules and regulations 
governing the anchorage and movement of any vessel, foreign or 
domestic, in the territorial waters of the United States, which may be 
used, or is susceptible of being used, for voyage into Cuban 
territorial waters and that may create unsafe conditions, or result in 
unauthorized transactions, and thereby threaten a disturbance of 
international relations.
    In Order 2004-001, the Secretary delegated to the Commandant of the 
Coast Guard and, subject to the direction of the Commandant, to the 
several Coast Guard Area and District Commanders, the authority to make 
such rules and regulations, and vested in the Commandant and those 
officers all powers and authorities given to the Secretary in 
Proclamation 7757. This delegation to the Coast Guard from the 
Secretary necessarily includes the authority to establish and enforce 
rules and regulations regarding the movement and anchorage of certain 
vessels of the United States, and vessels without nationality, in U.S. 
territorial waters, including a requirement for the owners, agents, 
masters, officers, persons in charge, and members of the crew of such 
vessels to present evidence of compliance with the regulations 
implementing economic sanctions against Cuba as a condition of usage 
of, and operations in, U.S. territorial waters. This rule, therefore, 
requires any vessel of the United States,\1\ and vessels without 
nationality, less than 100 meters (328 feet) in length (and all 
associated auxiliary vessels) and the owners, agents, masters, 
officers, persons in charge, and members of the crew of such vessels 
that depart U.S. territorial waters and thereafter enter Cuban 
territorial waters, regardless of whether such entry is made after an 
intervening entry into, passage through, or departure from any other 
foreign territory or territorial waters, to obtain a written permit 
from the Commander, Seventh Coast Guard District, or the District 
Commander's designee.
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    \1\ See 46 U.S.C. Chapters 121 and 123; 46 U.S.C. App. 1903; 
Art. 6, United Nations Convention on the Law of the Sea (UNCLOS).
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    This rule does not apply to foreign flag vessels. The security zone 
removed by this rule applied to foreign flag vessels, except those in 
innocent passage. The security zone removed by this rule applied to 
vessels less than 50 meters (165 feet) in length. This rule applies to 
U.S. vessels, and vessels without nationality, less than 100 meters 
(328 feet) in length. U.S. vessels 100 meters and longer that enter 
Cuban territorial waters generally hold appropriate export licenses. 
Thus, this rule covers those vessels that generally do not hold 
appropriate export licenses. Such vessels must apply for and hold those 
licenses as a condition precedent to apply for a Coast Guard permit.
    Further, Proclamation 7757 provides that the Secretary is 
authorized to receive assistance from other government agencies as 
necessary to carry out its purpose. Coupled with 14 U.S.C. 141, 
Proclamation 7757 provides the direction and authority to the Coast 
Guard to assist other agencies in the enforcement of the economic 
sanctions and receive assistance from other agencies in the enforcement 
of this rule.
    Accordingly, in order for covered vessels to receive a Coast Guard 
permit to enter Cuban territorial waters, the Coast Guard will require 
the permit application to include a copy of a valid

[[Page 41369]]

and applicable license issued to the applicant by the U.S. Department 
of Commerce, Bureau of Industry and Security (BIS), pursuant to the 
Export Administration Regulations, 15 CFR chapter VII, subchapter C, 
parts 730-774 for the export of the vessel to Cuba. The Coast Guard 
will also require the permit application to include a copy of a valid 
and applicable specific license issued by the U.S. Department of the 
Treasury (OFAC), pursuant to the Cuban Assets Control Regulations, 31 
CFR part 515, authorizing the applicant's travel-related transactions 
in Cuba. Applicants who do not require such an OFAC specific license 
are required to make a written certification to that effect identifying 
which OFAC general license applies or explaining why no OFAC license is 
required. Applications must provide the documentation required for each 
person to which this rule applies on board the particular vessel. The 
Coast Guard will work closely with OFAC and BIS to ensure alignment of 
effort in the enforcement of the economic sanctions against Cuba. This 
will allow the Coast Guard to ensure that its decisions on permits for 
entry into Cuban territorial waters are made in a manner which is 
consistent with the decisions of those agencies responsible for 
economic sanctions enforcement.
    This rule removes the security zone around the Florida peninsula, 
because it is no longer necessary as the new rule applies nation-wide 
to all covered vessels and persons within U.S. territorial waters.
    This rule will continue so long as the national emergency and 
regulatory authority as declared by the President in Presidential 
Proclamation 6867, and expanded in scope by Proclamation 7757, 
continues pursuant to section 202(d) of the National Emergencies Act 
(50 U.S.C. 1622(d)). The Coast Guard intends to publish annually in the 
Federal Register a notice of the status of this rule.

Discussion of Rule

    This rule creates a new 33 CFR part 107 to establish a place in the 
CFR for nation-wide vessel and facility control measures and limited 
access areas. This new part is placed within subchapter H of chapter I, 
title 33, as a follow-on to the national maritime security rules 
published last year (68 FR 60448; 68 FR 39240). The Coast Guard intends 
that this and any other nation-wide measures regarding control of 
vessels or facilities, or the establishment of nation-wide limited 
access areas (security zones, safety zones, or other types of limited 
or controlled access areas), for purposes of maritime security, will be 
placed in new 33 CFR part 107. Local and regional regulated navigation 
areas and limited access areas will continue to be placed in 33 CFR 
part 165.
    The Coast Guard has determined that controlling entry of U.S. 
vessels, and vessels without nationality, into Cuban waters and 
controlling the departure of U.S. vessels, and vessels without 
nationality, bound for Cuba is necessary to protect the safety of 
United States citizens and residents, to improve enforcement of the 
economic sanctions against the Government of Cuba, and to prevent 
threatened disturbance of the international relations of the United 
States.
    This rule applies to vessels of the United States (individually or 
corporately owned), and vessels without nationality, less than 100 
meters (328 feet) in length (and all associated auxiliary vessels) and 
the owners, agents, masters, officers, persons in charge, and members 
of the crew of vessels of the United States and vessels without 
nationality, located within U.S. territorial waters that depart those 
waters and thereafter enter Cuban territorial waters, regardless of 
whether such entry is made after an intervening entry into, passage 
through, or departure from any other foreign territory or territorial 
waters. Accordingly, the rule continues to apply to a covered vessel 
that departs U.S. territorial waters and enters the territorial waters 
of a third country before entering Cuban waters. The rule may be 
enforced against U.S. vessels or vessels without nationality that have 
operated within the U.S. 12 nautical mile territorial sea or inland 
waters before entering Cuban territorial waters. This rule does not 
apply to warships, foreign vessels, other public vessels operated for 
non-commercial purposes, or U.S. vessels entering Cuban territorial 
waters under force majeure. If necessary, pursuant to the authority in 
Proclamation 7757, the Coast Guard in the future may issue rules or 
regulations that apply to other vessels subject to the jurisdiction of 
the United States.
    Vessels and persons to which the rule applies cannot move within or 
depart U.S. territorial waters and thereafter enter Cuban territorial 
waters without a Coast Guard permit. If issued, the permit must be kept 
on board the vessel. The Coast Guard may issue appropriate orders to 
control the movement and anchorage of all vessels covered by the rule. 
Additionally, the Coast Guard may remove all persons not specifically 
authorized by the Coast Guard to go or remain on board covered vessels, 
may place guards on covered vessels, and may take full or partial 
possession or control of any such vessel or part thereof. Such actions 
to be taken are in the discretion of the Coast Guard as deemed 
necessary to ensure compliance with the provisions of the rule or any 
other order issued under the authority of the rule. Nothing in this 
rule precludes the Coast Guard, or any other agency, from taking action 
pursuant to any other applicable authority.
    Even if a covered vessel has not applied for a permit, where there 
is an articulable basis to believe that the vessel intends to enter 
Cuban territorial waters, as a condition of moving in or departing from 
U.S. territorial waters, the Coast Guard has the discretion to require 
the owner, agent, master, officer, or person in charge, or any member 
of the crew of any covered vessel to provide verbal assurance to the 
Coast Guard that the vessel will not enter Cuban territorial waters. 
Likewise, the Coast Guard may require the owners, agents, masters, 
officers, or persons in charge of covered vessels to identify all 
persons on board the vessel and provide verbal assurances that all 
persons on board have received actual notice of these regulations. The 
failure of an owner, agent, master, officer, or person in charge, or 
any member of the crew of any vessel (including all auxiliary vessels) 
to provide requested verbal assurances shall not be used as the sole 
basis for seizing the vessel for forfeiture under this rule. 
Additionally, where there is an articulable basis to believe that a 
covered vessel located in U.S. territorial waters intends to enter 
Cuban territorial waters, the Coast Guard may require that the vessel 
apply for a permit as a condition of departure.
    Applicants may apply to the Chief of Operations, Seventh Coast 
Guard District in Miami, FL, for a permit. Applicants may mail or fax 
the required information and documentation for a permit to the Chief of 
Operations, Seventh Coast Guard District in Miami, FL. The Commander, 
Seventh Coast Guard District, may make available to the public 
documents and other information that may aid the public in the 
application process. There is no required form.
    Even if an applicant provides all of the information and 
documentation required by this rule in the permit application, the 
Coast Guard nevertheless will consider any available information that 
reasonably supports a conclusion that entry by the vessel or persons on 
board into Cuban territorial waters might: Subject the vessel or 
persons on board to the use of excessive or deadly force by the 
Government of Cuba; result in unauthorized transactions; or threaten a 
disturbance of the international relations of the

[[Page 41370]]

United States. In such a case, the Coast Guard intends to consult with 
other appropriate agencies prior to taking final agency action.
    Applicants denied permits may request the Seventh Coast Guard 
District Commander to reconsider that decision. The Seventh District 
Commander's decision on a request for reconsideration will constitute 
final agency action.
    Covered vessels and persons will be held to a standard of strict 
civil liability for any entry into Cuban territorial waters without a 
permit, or for failure to maintain the permit on board the vessel. 
Noncompliance with the permit application and permit carriage 
provisions may result in a civil penalty of not more than $25,000 for 
each day of violation. The Coast Guard will not impose strict liability 
if the failure to obtain or carry a permit results primarily from an 
act of war, force majeure, or the negligence of the United States.
    Although the applicable statute (50 U.S.C. 192) provides for strict 
criminal liability for non-compliant owners, agents, masters, officers, 
persons in charge and members of the crew, the Coast Guard has chosen 
not to include such criminal penalties for violation of the rule 
without the addition of scienter. Accordingly, any person who knowingly 
fails to comply with any requirements of, or order issued pursuant to, 
this rule, or knowingly obstructs or interferes with the exercise of 
any power conferred by this rule may be subject to criminal penalties 
of imprisonment of not more than 10 years, a penalty of not more than 
$10,000, seizure and forfeiture of the vessel, and a civil penalty of 
not more than $25,000 for each day of violation. Making false 
statements or writings may subject the actor to imprisonment for not 
more than five years or a fine, or both, pursuant to 18 U.S.C. 1001.
    The civil and criminal penalties provided for in this rule are 
separate from and in addition to any enforcement action that any other 
agency may seek for violations of the statutes and regulations 
administered by such agencies.

Regulatory Evaluation

    This rule is a ``significant regulatory action'' under section 
3(f)(4) of Executive Order 12866, Regulatory Planning and Review. The 
Office of Management and Budget has reviewed it under that Order. This 
rule implements Presidential Proclamation 7757, which expanded the 
scope of the national emergency and authority to regulate the anchorage 
and movement of vessels into Cuban territorial waters.
    Based on the limited number of boarding events within the last year 
in the geographic area most affected by this rule, we expect the 
economic impact of this rule to be minimal. In that geographic area, 
the Coast Guard boards on average 807 vessels each year that would be 
affected by this rule. The vast majority of these vessels have permits 
to be in Cuban waters. On average, each boarding takes 90 minutes for 
officers to check for permits and other documents. The Coast Guard 
estimates the total annual cost to vessel owners from these boarding 
operations to be $66,577.
    This rule is ``significant'' under the regulatory policies and 
procedures of the Department of Homeland Security. The requirements of 
this rule, although applicable nation-wide, are necessary to protect 
the safety of lives and property at sea, improve enforcement of the 
economic sanctions against Cuba, and to prevent threatened disturbance 
of the international relations of the United States. The requirements 
in this rule for persons or vessels are necessary to the national 
interest as described above and to prevent threatened disturbance of 
the international relations of the United States. This rule will be 
enforced so long as the national emergency and regulatory authority 
established in Proclamation 6867, and expanded in scope by Proclamation 
7757, continues.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), 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. This rule does not require a general 
notice of proposed rulemaking and, therefore, is exempt from the 
requirements of the Regulatory Flexibility Act.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer 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 Lieutenant Commander Brad 
Kieserman, Office of Law Enforcement (G-OPL), U.S. Coast Guard 
Headquarters, 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 a new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collection, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Title: Unauthorized entry into Cuban territorial waters.
    OMB Control Number: 1625-0106.
    Summary of the Collection of Information: The Coast Guard requires 
applicant identifying information, vessel registry, and federal export 
and transaction license information from applicants and U.S. vessels 
that apply for permits to enter Cuban territorial waters. This rule 
will amend 33 CFR subchapter H to require:
    Applicants must report the following information via facsimile or 
mail, or by other means prescribed by the District Commander for the 
convenience of the applicant:
    a. The name, address, and telephone number of the applicant.
    b. A copy of the valid vessel registration.
    c. A copy of a valid and applicable export license issued to the 
applicant by the U.S. Department of Commerce, Bureau of Industry and 
Security, pursuant to the Export Administration Regulations, 15 CFR 
chapter VII, subchapter C, parts 730-774 for the export of the vessel 
to Cuba.
    d. A copy of a valid and applicable specific license issued by the 
U.S. Department of the Treasury, Office of Foreign Assets Control 
(OFAC), pursuant to the Cuban Assets Control

[[Page 41371]]

Regulations, 31 CFR part 515, authorizing the applicant's travel-
related transactions in Cuba. Applicants who do not require such an 
OFAC specific license shall make a written certification to that effect 
identifying which OFAC general license applies or explaining why no 
OFAC license is required.
    e. Applications must provide the documentation required above for 
each person to which this rule applies on board the particular vessel.
    The changes will be in effect through January 31, 2005.
    Need for Information: To provide for the safety of United States 
citizens and residents, and their property, improve enforcement of the 
economic sanctions against Cuba, and to prevent threatened disturbances 
of the international relations of the United States.
    Proposed use of Information: This information is required to 
enhance maritime security, control vessel anchorages and movement, and 
enforce regulations.
    Description of the Respondents: The respondents are owners, agents, 
masters, officers, persons in charge or other applicants associated 
with U.S. vessels, and vessels without nationality, less than 100 
meters (328 feet) in length that may enter Cuban territorial waters.
    Number of Respondents: The existing OMB-approved collection number 
of respondents is zero (0). This rule will increase the number of 
respondents by 532 to a total of 532.
    Frequency of Response: The existing OMB-approved collection annual 
number of responses is zero (0). This rule will increase the number of 
responses by 532 to a total of 532.
    Burden of Response: The existing OMB-approved collection burden of 
response is zero (0). This rule will increase the burden of response by 
15 minutes (0.25 hours) to a total of 15 minutes (0.25 hours).
    Estimate of Total Annual Burden: The existing OMB-approved 
collection total annual burden is zero (0). This rule will increase the 
total annual burden by 133 hours to a total of 133 hours.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we submitted a copy of this rule to the Office of Management 
and Budget (OMB) for its review of the collection of information. Due 
to the circumstances surrounding this rule, we asked for ``emergency 
processing'' of our request. We received OMB approval for the 
collection of information on July 2, 2004. It is valid through January 
31, 2005.
    We ask for public comment on the collection of information to help 
us determine how useful the information is; whether it can help us 
perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by August 9, 2004.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. We received OMB 
approval for the collection of information on July 2, 2004. It is valid 
through January 31, 2005.

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.

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, paragraphs (34)(a), (d) and (g) of the Instruction, from 
further environmental documentation. This rule establishes procedures 
for U.S. vessels to receive permission to depart U.S waters and enter 
Cuban waters and concerns the documentation and inspection of such 
vessels.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects

33 CFR Part 107

    Harbors, Facilities, Marine safety, Maritime security, Navigation 
(water), Reporting and recordkeeping

[[Page 41372]]

requirements, Security measures, Vessels, Waterways.

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 adds part 
107 to subchapter H of chapter I, title 33 of the Code of Federal 
Regulations, and amends 33 CFR part 165 as follows:
0
1. Add part 107 to subchapter H of chapter I, title 33 of the Code of 
Federal Regulations to read as follows:

PART 107--NATIONAL VESSEL AND FACILITY CONTROL MEASURES AND LIMITED 
ACCESS AREAS

Subpart A--[Reserved]

Subpart B--Unauthorized Entry Into Cuban Territorial Waters

Sec.
107.200 Definitions.
107.205 Purpose and delegation.
107.210 Applicability.
107.215 Regulations.
107.220 Permits.
107.225 Appeals.
107.230 Enforcement.
107.240 Continuation.

    Authority: 50 U.S.C. 191, 192, 194, 195; 14 U.S.C. 141; 
Presidential Proclamation 6867, 61 FR 8843, 3 CFR, 1996 Comp., p. 8; 
Presidential Proclamation 7757, 69 FR 9515 (March 1, 2004); 
Secretary of Homeland Security Order 2004-001; Department of 
Homeland Security Delegation No. 0170.1; and 33 CFR 1.05-1.

Subpart A--[Reserved]

Subpart B--Unauthorized Entry Into Cuban Territorial Waters


Sec.  107.200  Definitions.

    Unless otherwise specified, as used in this subpart:
    Auxiliary vessel includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on water attached to, or embarked in, another vessel to 
which this subpart applies.
    Cuban territorial waters means the territorial sea and internal 
waters of Cuba determined in accordance with international law.
    Owner, agent, master, officer, or person in charge means the 
persons or entities that maintain operational control over any vessel 
subject to the requirements of this subpart.
    U.S. territorial waters has the same meaning as provided in 50 
U.S.C. 195.
    Vessel includes every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, including auxiliary vessels.
    Vessel of the United States means--
    (1) a vessel documented under chapter 121 of title 46 or a vessel 
numbered as provided in chapter 123 of that title;
    (2) a vessel owned in whole or part by--
    (i) the United States or a territory, commonwealth, or possession 
of the United States;
    (ii) a State or political subdivision thereof;
    (iii) a citizen or national of the United States; or
    (iv) a corporation, partnership, association, trust, joint venture, 
limited liability company, limited liability partnership, or any other 
legal entity, created and authorized to own vessels under the laws of 
the United States or any State, the District of Columbia, or any 
territory, commonwealth, or possession of the United States; unless the 
vessel has been granted the nationality of a foreign nation in 
accordance with article 5 of the 1958 Convention on the High Seas and a 
claim of nationality or registry for the vessel is made by the master 
or individual in charge at the time of the enforcement action by an 
officer or employee of the United States authorized to enforce 
applicable provisions of United States law;
    (3) a vessel that was once documented under the laws of the United 
States and, in violation of the laws of the United States, was either 
sold to a person not a citizen of the United States or placed under 
foreign registry or a foreign flag, whether or not the vessel has been 
granted the nationality of a foreign nation;
    (4) A vessel without nationality as defined in 46 U.S.C. Appendix 
1903(c)(2)-(3); or
    (5) a vessel assimilated to a vessel without nationality, in 
accordance with paragraph (2) of article 6 of the 1958 Convention on 
the High Seas.


Sec.  107.205  Purpose and delegation.

    The purpose of this subpart is to implement Presidential 
Proclamation 7757, and Secretary of Homeland Security Order 2004-001. 
All powers and authorities granted to officers of the Coast Guard by 
this subpart may be delegated to other officers and agents of the Coast 
Guard unless otherwise prohibited by law.


Sec.  107.210  Applicability.

    (a) This subpart applies to:
    (1) Vessels of the United States less than 100 meters (328 feet) in 
length (and all associated auxiliary vessels) and the owners, agents, 
masters, officers, persons in charge, and members of the crew of such 
vessels, that depart U.S. territorial waters and thereafter enter Cuban 
territorial waters, regardless of whether such entry is made after an 
intervening entry into, passage through, or departure from any other 
foreign territory or territorial waters;
    (2) Vessels of the United States less than 100 meters (328 feet) in 
length (and all associated auxiliary vessels) and the owners, agents, 
masters, officers, persons in charge, and members of the crew of such 
vessels that are located at or get underway from a berth, pier, 
mooring, or anchorage in U.S. territorial waters, or depart U.S. 
territorial waters with the intent to enter Cuban territorial waters; 
and
    (3) Any person who knowingly fails to comply with this subpart or 
order given under this subpart, or knowingly obstructs or interferes 
with the exercise of any power conferred by this subpart.
    (b) This subpart does not apply to: Foreign vessels, as defined by 
46 U.S.C. 2101(12), public vessels, as defined by 46 U.S.C. 2101(24) 
operated for non-commercial purposes, or vessels of the United States 
entering Cuban territorial waters under force majeure.


Sec.  107.215  Regulations.

    (a) Each person or vessel to which this subpart applies may not get 
underway or depart from U.S. territorial waters without a written 
permit from the Commander, Seventh Coast Guard District, or the 
District Commander's designee. Permits may be obtained pursuant to the 
process established in Sec.  107.220. The owner, agent, master, or 
person in charge of the vessel must maintain the written permit for the 
vessel on board the vessel.
    (b) Each person or vessel to which this subpart applies must obey 
any oral or written order issued by a Coast Guard Area or District 
Commander, or their designees, who may issue oral or written orders to 
control the anchorage or movement of such vessels and persons. 
Designees include Captains of the Port, and commissioned, warrant and 
petty officers of the Coast Guard.
    (c) No person or vessel to which this subpart applies may obstruct 
or interfere with the exercise of any power conferred by this subpart.
    (d) Coast Guard commissioned, warrant and petty officers may go or 
remain on board a vessel subject to this subpart, may place guards on 
the subject vessel, may remove all persons not specifically authorized 
by the Coast

[[Page 41373]]

Guard to go or remain on board the subject vessel, and may take full or 
partial possession or control of any such vessel or part thereof, or 
person on board. Such actions to be taken are in the discretion of the 
Coast Guard Area or District Commander, or their designees, as deemed 
necessary to ensure compliance with this subpart and any order given 
pursuant thereto.
    (e) Where there is a reasonable, articulable basis to believe a 
vessel to which this subpart applies intends to enter Cuban territorial 
waters, any Coast Guard commissioned, warrant, or petty officer may 
require the owners, agents, masters, officers, or persons in charge, or 
any member of the crew of any such vessel to provide verbal assurance 
that the vessel will not enter Cuban territorial waters as a condition 
for a vessel to get underway from a berth, pier, mooring, or anchorage 
in U.S. territorial waters, or to depart from U.S. territorial waters. 
A Coast Guard commissioned, warrant, or petty officer may require the 
owners, agents, masters, officers, or persons in charge of the vessel 
to identify all persons on board the vessel and provide verbal 
assurances that all persons on board have received actual notice of 
these regulations. The failure of an owner, agent, master, officer, or 
person in charge, or any member of the crew of any vessel (including 
all auxiliary vessels) to which this subpart applies to provide 
requested verbal assurances shall not be used as the sole basis for 
seizing the vessel for forfeiture under this subpart.
    (f) The provisions of this subpart are in addition to any powers 
conferred by law upon Coast Guard commissioned, warrant, or petty 
officers, and not in limitation of any powers conferred by law or 
regulation upon such officers, or any other officers of the United 
States.


Sec.  107.220  Permits.

    (a) Applications for a permit may be obtained by writing or calling 
the Chief of Operations at Commander, Seventh Coast Guard District (o), 
909 SE First Avenue, Miami, FL 33131, telephone (305) 415-6920, or by 
such other means as the District Commander may make available to the 
public. The completed application may be returned via regular mail or 
facsimile to the Chief of Operations at Commander, Seventh Coast Guard 
District (o), 909 SE First Avenue, Miami, FL 33131, facsimile (305) 
415-6925, or by other means prescribed by the District Commander for 
the convenience of the applicant.
    (b) All applications must be written in English and legible.
    (c) The information and documentation in this paragraph must be 
provided with the application in order for it to be complete and 
considered by the Coast Guard:
    (1) The name, address, and telephone number of the applicant;
    (2) A copy of the valid vessel registration;
    (3) A copy of a valid and applicable license issued to the 
applicant by the U.S. Department of Commerce, Bureau of Industry and 
Security, pursuant to the Export Administration Regulations, 15 CFR 
chapter VII, subchapter C, parts 730-774 for the export of the vessel 
to Cuba; and
    (4) A copy of a valid and applicable specific license issued by the 
U.S. Department of the Treasury, Office of Foreign Assets Control 
(OFAC), pursuant to the Cuban Assets Control Regulations, 31 CFR part 
515, authorizing the applicant's travel-related transactions in Cuba. 
Applicants who do not require such an OFAC specific license shall make 
a written certification to that effect identifying which OFAC general 
license applies or explaining why no OFAC license is required.
    (d) Such applications must provide the documentation required by 
Sec.  107.220(c) for each person to which this subpart applies on board 
the particular vessel.
    (e) Upon receiving an application for a permit, the Seventh Coast 
Guard District Commander (o) has ten (10) calendar days from the 
receipt of the application to decide whether the application is 
complete and, if so, whether a permit will be issued or denied. 
Applicants will be notified in writing of the decision to issue or deny 
a permit. Incomplete applications will be returned to the applicant, 
along with the reasons why such application was deemed incomplete.


Sec.  107.225  Appeals.

    (a) Upon written notification by the Coast Guard that an 
application has been denied, the applicant may request the Seventh 
Coast Guard District Commander to reconsider. The request to reconsider 
must be in writing, must be made within five (5) business days from the 
date of receipt of the initial denial, and must contain complete 
supporting documentation and evidence which the applicant wishes to 
have considered. Requests for reconsideration must be mailed to 
Commander, Seventh Coast Guard District (d), 909 SE First Avenue, 
Miami, FL 33131.
    (b) Upon receipt of the request to reconsider, the Seventh Coast 
Guard District Commander may direct a representative to gather and 
submit documentation or other evidence, which, in the judgment of the 
Seventh District Commander, would be necessary or helpful to a 
resolution of the request. If gathered and submitted, a copy of this 
documentation and evidence shall be made available to the applicant. 
The applicant shall be afforded five (5) business days from the date of 
receipt of documentation and evidence gathered by the Seventh Coast 
Guard District Commander's representative to submit rebuttal materials. 
On or before the fifteenth (15th) calendar day following submission of 
all materials, the Seventh Coast Guard District Commander shall issue a 
ruling, in writing, on the request to reconsider. The ruling may 
reverse the initial denial, or, if the denial is upheld, must contain 
the specific basis for denial of the application upon reconsideration.
    (c) The Seventh Coast Guard District Commander's denial of a 
request for reconsideration taken under paragraph (b) of this section 
constitutes final agency action.


Sec.  107.230  Enforcement.

    (a) Unauthorized departure or entry, or both.
    (1) Vessels and persons to whom this subpart applies, as described 
in Sec.  107.210(a)(1), that do not comply with Sec.  107.215(a), or 
any order issued pursuant to this subpart may be subject to a civil 
penalty of not more than $25,000 for each day of violation.
    (2) Vessels and persons to whom Sec.  107.230(a)(1) applies shall 
be held to a standard of strict liability for any entry into Cuban 
territorial waters without a permit or for failure to maintain the 
permit for the vessel on board the vessel as required under this 
subpart, except that strict liability will not be imposed if the 
failure to obtain or carry a permit results primarily from an act of 
war, force majeure, or the negligence of the United States.
    (b) Knowing failure to comply. Any person to whom this subpart 
applies as described in Sec. Sec.  107.210(a)(2) or (a)(3) who 
knowingly fails to comply with this subpart or order given under this 
subpart, or knowingly obstructs or interferes with the exercise of any 
power conferred by this subpart may be subject to:
    (1) Imprisonment for not more than 10 years;
    (2) A monetary penalty of not more than $10,000;
    (3) Seizure and forfeiture of the vessel; and
    (4) A civil penalty of not more than $25,000 for each day of 
violation.
    (c) False Statements. Violation of 18 U.S.C. 1001 may result in 
imprisonment

[[Page 41374]]

for not more than five years or a fine, or both.
    (d) Other enforcement. The civil penalties provided for in this 
subpart are separate from and in addition to any enforcement action 
that any other agency may seek for violations of the statutes and 
regulations administered by such agencies.


Sec.  107.240  Continuation.

    This subpart will continue to be enforced so long as the national 
emergency with respect to Cuba, and the emergency authority relating to 
the regulation of the anchorage and movement of vessels declared in 
Proclamation 6867, and expanded in scope by Proclamation 7757, 
continues.

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
2. 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.

Sec.  165.T07-013  [Removed].

0
3. Remove Sec.  165.T07-013.

    Dated: July 2, 2004.
Thomas H. Collins,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 04-15590 Filed 7-6-04; 1:25 pm]
BILLING CODE 4910-15-P