[Federal Register Volume 69, Number 178 (Wednesday, September 15, 2004)]
[Rules and Regulations]
[Pages 55502-55505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20717]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-002]
RIN 1625-AA87


Security Zones; Monterey Bay and Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is revising the enforcement period of moving 
and fixed security zones extending 100 yards in the U.S. navigable 
waters around and under all cruise ships, tank vessels, and High 
Interest Vessels (HIVs) that enter, are moored or anchored in, or 
depart from the designated waters of Monterey Bay or Humboldt Bay, 
California. These security zones are needed for national security 
reasons to protect the public and ports of Monterey Bay and Humboldt 
Bay from potential 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 from 11:59:01 p.m. on September 5, 2004, 
to 11:59 p.m. on March 5, 2005.

ADDRESSES: Documents indicated in this preamble, as being available in 
the docket, are part of docket COTP San Francisco Bay 04-002 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) 437-2770.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM because the threat to U.S. 
assets and the public currently exists and is ongoing. Under 5 U.S.C. 
553(d)(3), the Coast Guard finds that good cause exists for making this 
rule effective less than 30 days after publication in the Federal 
Register because the threat of maritime attacks is real as evidenced by 
the October 2002 attack of a tank vessel off the coast of Yemen and the 
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 disturbances continue 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); Continuation of 
the National Emergency With Respect To Persons Who Commit, Threaten To 
Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). 
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag 
and Effective U.S. controlled Vessels and other Maritime Interests, 
detailing the current threat of attack, MARAD 02-07 (October 10, 2002). 
As a result, a heightened level of security has been established around 
all cruise ships, tank vessels, and High Interest Vessels (HIVs) in 
Monterey Bay and Humboldt Bay, California. Additionally, the measures 
contemplated by this rule are intended to prevent future terrorist 
attacks against individuals and facilities within or adjacent to cruise 
ships, tank vessels, and HIVs located in Monterey Bay and Humboldt Bay. 
Any delay in the effective date of this TFR is impractical and contrary 
to the public interest.
    In addition to this temporary final rule (TFR), we will be 
publishing a notice of proposed rulemaking (NPRM) under docket COTP San 
Francisco Bay 04-003, in which we propose to make permanent these 
temporary security zones around cruise ships, tank vessels, and HIVs in 
Monterey Bay and Humboldt Bay. In the NPRM, we propose to amend 33 CFR 
165.1183, which was added by the final rule (COTP San Francisco Bay 02-
019) published in the Federal Register (67 FR 79854) on December 31, 
2002, and later amended by final rule (COTP San Francisco Bay 03-002) 
published in the Federal Register (69 FR 8817) on February 26, 2004. 
Section 165.1183, ``Security Zones; Cruise Ships, Tank Vessels, and 
High Interest Vessels, San Francisco Bay and Delta ports, California'', 
established security zones around cruise ships, tank vessels, and HIVs 
in the San Francisco Bay and Delta ports, but does not address security 
zones around these vessels when they are located in Monterey Bay and 
Humboldt Bay, California. This temporary rule will provide security in 
Monterey Bay and Humboldt Bay during a notice-and-comment rulemaking 
for a permanent rule, and Sec.  165.1183 will remain in effect until 
amended by a future rule.

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. 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 an ongoing intention to conduct 
armed attacks on U.S. interests worldwide.

[[Page 55503]]

    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, 
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 a cruise ship, tank vessel, or HIV 
would have on the public interest, the Coast Guard is extending the 
enforcement period for security zones around and under cruise ships, 
tank vessels, and HIVs entering, departing, moored or anchored within 
designated waters of Monterey Bay and Humboldt Bay, California. These 
security zones help the Coast Guard to prevent vessels or persons from 
engaging in terrorist actions against these types of vessels. Due to 
these heightened security concerns, and the catastrophic impact a 
terrorist attack on a cruise ship, tank vessel, or HIV would have on 
the crew and passengers on board, and the surrounding area and 
communities, security zones are prudent for these types of vessels.

Discussion of Rule

    On December 31, 2002, we published the final rule (COTP San 
Francisco Bay 02-019) adding Sec.  165.1183, ``Security Zones; Cruise 
Ships and Tank Vessels, San Francisco Bay and Delta ports, California'' 
in the Federal Register (67 FR 79854). That section set forth security 
zones for cruise ships and tank vessels in San Francisco Bay and delta 
ports. A subsequent final rule (COTP San Francisco Bay 03-002) 
published in the Federal Register (69 FR 8817) on February 26, 2004, 
amended section 165.1183 to include HIVs as protected vessels in that 
section, along with cruise ships and tank vessels.
    On March 29, 2004, we published a temporary final rule (COTP San 
Francisco Bay 04-002) in the Federal Register (69 FR 16163) that 
established security zones around all cruise ships, tank vessels, and 
HIVs that are anchored, moored or underway within designated waters of 
Monterey Bay and Humboldt Bay, California. In this temporary rule, the 
Coast Guard is extending the enforcement period of these security zones 
for an additional six months.
    For Monterey Bay, a security zone is activated when any cruise 
ship, tank vessel, or HIV passes shoreward of a line drawn between 
Santa Cruz Light (LLNR 305) to the north in position 36[deg]57.10[min] 
N, 122[deg]01.60[min] W, and Cypress Point, Monterey to the south, in 
position 36[deg]34.90[min] N, 121[deg]58.70[min] W.
    For Humboldt Bay, a security zone is activated when any cruise 
ship, tank vessel, or HIV enters an area within a 4 nautical mile 
radius line drawn west of the Humboldt Bay Entrance Lighted Whistle 
Buoy HB (LLNR 8130), in position 40[deg]46.25[min] N, 
124[deg]16.13[min] W, or enters waters within the Humboldt Bay Harbor.
    The security zone remains in effect while the cruise ship, tank 
vessel, or HIV is underway, anchored or moored within the designated 
waters of Monterey Bay or Humboldt Bay. When activated, the 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 the vessel. This security zone is automatically 
deactivated when the vessel departs from the areas of Monterey Bay or 
Humboldt Bay designated in this rule. 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.
    The Captain of the Port will enforce this zone and may enlist the 
aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the enforcement of the regulation. Section 
165.33 of title 33, Code of Federal Regulations, prohibits any 
unauthorized person or vessel from entering or remaining in a security 
zone. Vessels or persons violating this section may 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 $32,500 per violation, 
where each day of a continuing violation is a separate violation), 
criminal penalties (imprisonment from 5 to 10 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, will also 
face imprisonment from 10 to 25 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, imprisonment up to 10 years, and a 
civil penalty of not more than $25,000 for each day of a continuing 
violation.

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 restricts access to a portion of navigable 
waters, the effect of this regulation will not be significant because: 
(i) The zones encompass only a small portion of the waterway; (ii) 
vessels are able to pass safely around the zones; and (iii) vessels may 
be allowed to enter these zones on a case-by-case basis with permission 
of the Captain of the Port or his designated representative.
    The size of the zones is the minimum necessary to provide adequate 
protection for all cruise ships, tank vessels, and HIVs, other vessels 
operating in the vicinity of these vessels, adjoining areas, and the 
public. The entities most likely to be affected are fishing vessels and 
pleasure craft engaged in recreational activities and sightseeing.

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. We expect this rule may affect owners and operators of 
vessels, some of which may be small entities, intending to fish, 
sightsee, transit, or anchor in the waters affected by these security 
zones. These security zones will not have a

[[Page 55504]]

significant economic impact on a substantial number of small entities 
for several reasons: Small vessel traffic will be able to 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. 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 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 the person listed under FOR 
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because we are establishing a security 
zone.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' will be available in the docket 
where located 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. Reinstate temporary Sec.  165.T11-004, and revise paragraph (f) to 
read as follows:


Sec.  165.T11-004  Security Zones; Monterey Bay and Humboldt Bay, 
California.

    (a) Definitions. As used in this section--

[[Page 55505]]

    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 
ports of Monterey or Humboldt Bay.
    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) Monterey Bay. All waters extending from the surface to the sea 
floor, within 100 yards of all cruise ships, tank vessels, and HIVs 
within the waters of Monterey Bay east of a line drawn between Santa 
Cruz Light (LLNR 305) to the north in position 36[deg]57.10' N, 
122[deg]01.60' W, and Cypress Point, Monterey to the south, in position 
36[deg]34.90' N, 121[deg]58.70' W.
    (2) Humboldt Bay. All waters extending from the surface to the sea 
floor, within 100 yards of all cruise ships, tank vessels, and HIVs 
within the waters of Humboldt Bay and the waters of the Pacific Ocean 
within a 4 nautical mile radius of the Humboldt Bay Entrance Lighted 
Whistle Buoy HB (LLNR 8130), in position 40[deg]46.25' N, 
124[deg]16.13' W.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into these security zones is 
prohibited, unless doing so is specifically authorized by the Captain 
of the Port San Francisco Bay, or his designated representative.
    (2) Persons desiring to transit the area of a 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. The authority for this section includes 33 U.S.C. 
1226, 1231; 50 U.S.C. 191, 195.
    (e) Enforcement. All persons and vessels shall comply with the 
instructions of the Coast Guard Captain of the Port or the designated 
on-scene patrol personnel. Patrol personnel comprise commissioned, 
warrant, and petty officers of the Coast Guard onboard Coast Guard, 
Coast Guard Auxiliary, local, state, and federal law enforcement 
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by 
siren, radio, flashing light, or other means, the operator of a vessel 
shall proceed as directed. The U.S. Coast Guard may be assisted in the 
patrol and enforcement of these security zones by local law enforcement 
as necessary.
    (f) Effective period. This section is effective from 11:59 p.m. on 
March 5, 2004, to 11:59 p.m. on March 5, 2005.

    Dated: August 31, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-20717 Filed 9-14-04; 8:45 am]
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