[Federal Register Volume 69, Number 180 (Friday, September 17, 2004)]
[Proposed Rules]
[Pages 56011-56015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21007]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-003]
RIN 1625-AA87


Security Zones; Monterey Bay and Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish permanent moving and 
fixed security zones extending 100 yards in the U.S. navigable waters 
around and under all cruise ships, tankers, 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 would be prohibited, 
unless specifically authorized by the Captain of the Port

[[Page 56012]]

San Francisco Bay, or his designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before November 16, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California 94501. The Waterways 
Management Branch maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be available for inspection or 
copying at the Waterways Management Branch between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, (510) 437-2770.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Francisco Bay 04-003), indicate the specific section of this document 
to which each comment applies, and give the reason for each comment. 
Please submit all comments and related material in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know that your submission reached us, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Management Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. 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.
    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, tanker, or HIV would 
have on the public interest, the Coast Guard is proposing to establish 
permanent security zones around and under cruise ships, tankers, and 
HIVs that enter, are moored or anchored in, or depart from the 
designated waters of Monterey Bay or 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, tanker, 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.
    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 Sec.  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 under COTP 
San Francisco Bay 04-002 in the Federal Register (69 FR 16163) creating 
temporary Sec.  165.T11-004 of Title 33 of the Code of Federal 
Regulations (CFR). Under temporary Sec.  165.T11-004, the Coast Guard 
established 100-yard moving and fixed security zones around all cruise 
ships, tank vessels, and HIVs that enter, are moored or anchored in, or 
depart from the designated waters of Monterey Bay or Humboldt Bay, 
California.
    Though temporary Sec.  165.T11-004 expired at 11:59 p.m. on 
September 5, 2004, it was effectively and seamlessly extended by a 
change in effective period temporary rule that was issued on August 31, 
2004. This change in the effective period of the temporary rule is also 
found under docket COTP San Francisco Bay 04-002, and extended the rule 
to 11:59 p.m. on March 5, 2005. The Captain of the Port has determined

[[Page 56013]]

there is a need for continued security regulations.
    We propose to create permanent security zones in the same areas 
currently protected by temporary security zones under Sec.  165.T11-
004. Our proposed rule would amend Sec.  165.1183 ``Security Zones; 
Cruise Ships, Tank Vessels, and High Interest Vessels (HIVs), San 
Francisco Bay and Delta ports, California'' (67 FR 79856) to accomplish 
the following: (1) Update the definition of ``cruise ship'' to match 
the definition in 33 CFR 101.105, (2) change the term ``tank vessel'' 
to ``tanker'' to coincide with the definition in 33 CFR 160.3 and 
better reflect our intention for the rule to apply to self-propelled 
vessels, and (3) extend the permanent security zones established around 
cruise ships, tank vessels, and HIVs in San Francisco Bay and Delta 
Ports to include cruise ships, tankers, and HIVs in Monterey Bay and 
Humboldt Bay.

Discussion of Proposed Rule

    For Humboldt Bay, a security zone would be activated when any 
cruise ship, tanker, or HIV enters the area shoreward of a 4 nautical 
mile radius line drawn to the west of the Humboldt Bay Entrance Lighted 
Whistle Buoy HB (LLNR 8130), in position 40[deg]46.25' N, 
124[deg]16.13' W.
    For Monterey Bay, a security zone would be activated when any 
cruise ship, tanker, or HIV passes shoreward 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.
    The security zone would remain in effect while the cruise ship, 
tanker, or HIV is underway, anchored or moored within the designated 
waters of Monterey Bay or Humboldt Bay. When activated, the security 
zone would 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 would be 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 these proposed security zones on a case-by-case basis with 
authorization from the Captain of the Port.
    These security zones are needed for national security reasons to 
protect cruise ships, tankers, HIVs, the public, transiting vessels, 
adjacent waterfront facilities and the ports from potential subversive 
acts, accidents or other events of a similar nature. Entry into these 
zones would be prohibited unless specifically authorized by the Captain 
of the Port or his designated representative.
    The Captain of the Port would enforce these zones and may enlist 
the aid and cooperation of any Federal, State, county, municipal and 
private agency to assist in the enforcement of the regulation. 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 would be subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 
U.S.C. 1232, any violation of the 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 proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget has not reviewed it under that Order. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    Although this proposed regulation would restrict access to a 
portion of navigable waters, the effect of this regulation would not be 
significant because: (i) The zones would encompass only a small portion 
of the waterway; (ii) vessels would be 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, tankers, 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 proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 proposed security zones would not have a significant 
economic impact on a substantial number of small entities for several 
reasons: vessel traffic would be able to pass safely around the area, 
vessels engaged in recreational activities, sightseeing and commercial 
fishing would have ample space outside of the security zones to engage 
in these activities, and small entities and the maritime public will be 
advised of these security zones via public notice to mariners.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Doug 
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety 
Office San Francisco Bay,

[[Page 56014]]

(510) 437-2770. The Coast Guard will not retaliate against small 
entities that question of complain about this rule or any policy or 
action of the Coast Guard.

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed 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 proposed 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 proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

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 proposed 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 proposed 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 draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) will be available in the 
docket where indicated under ADDRESSES. Comments on this section will 
be considered before we make the final decision on whether the rule 
should be categorically excluded from further environmental review.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Revise Sec.  165.1183 to read as follows:


Sec.  165.1183  Security Zones; Cruise Ships, Tankers and High Interest 
Vessels, San Francisco Bay and Delta ports, Monterey Bay and Humboldt 
Bay, California.

    (a) Definitions. As used in this section--
    Cruise ship means any vessel over 100 gross register tons, carrying 
more than 12 passengers for hire which makes voyages lasting more than 
24 hours, of which any part is on the high seas. Passengers from cruise 
ships are embarked or disembarked in the U.S. or its territories. 
Cruise ships do not include ferries that hold Coast Guard Certificates 
of Inspection endorsed for ``Lakes, Bays and Sounds'' that transit 
international waters for only short periods of time on frequent 
schedules.
    Tanker means any self-propelled tank vessel constructed or adapted 
primarily to carry oil or hazardous materials in bulk in the cargo 
spaces.
    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.
    (b) Locations. The following areas are security zones:
    (1) San Francisco Bay. All waters, extending from the surface to 
the sea floor, within 100 yards ahead, astern

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and extending 100 yards along either side of any cruise ship, tanker or 
HIV that is underway, anchored, or moored within the San Francisco Bay 
and Delta port areas shoreward of the line drawn between San Francisco 
Main Ship Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 
37[deg]46.9' N, 122[deg]35.4' W and 37[deg]46.5' N, 122[deg]35.2' W, 
respectively);
    (2) Monterey Bay. All waters, extending from the surface to the sea 
floor, within 100 yards ahead, astern and extending 100 yards along 
either side of any cruise ship, tanker or HIV that is underway, 
anchored, or moored within the Monterey Bay area shoreward 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.
    (3) Humboldt Bay. All waters, extending from the surface to the sea 
floor, within 100 yards ahead, astern and extending 100 yards along 
either side of any cruise ship, tanker or HIV that is underway, 
anchored, or moored within the Humboldt Bay area shoreward of a 4 
nautical mile radius line drawn to the west 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 or remaining in this zone is prohibited unless 
authorized by the Coast Guard Captain of the Port, San Francisco Bay, 
or his designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 415-399-3547 or on 
VHF-FM channel 16 (156.8 MHz) to seek permission to transit the area. 
If permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his designated 
representative.

    Dated: September 7, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-21007 Filed 9-16-04; 8:45 am]
BILLING CODE 4910-15-P