[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11546-11549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4599]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CCGD11-04-010]
RIN 1625-AA11


Regulated Navigation Area; Humboldt Bay Bar Channel and Humboldt 
Bay Entrance Channel, Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is designating the Humboldt Bay Bar Channel 
and the Humboldt Bay Entrance Channel as a Regulated Navigation Area 
(RNA) for certain commercial vessels transporting oil or hazardous 
material as cargo. This action is necessary to reduce significant 
hazards to subject vessels, the port and the public that are present 
during periods of poor weather conditions. The RNA codifies existing 
Captain of the Port San Francisco Bay (COTP) policies for vessels 
transporting oil or certain dangerous cargoes in bulk within Humboldt 
Bay.

DATES: This rule is effective from April 8, 2005 to October 11, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of the docket [CCGD11-04-010] and are available for 
inspection or copying at Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California, 94501, between 9 a.m. and 
4 p.m., Monday through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that 
good cause exists for not publishing an NPRM. Any delay in implementing 
this rule would be contrary to the public interest since immediate 
action is necessary to protect the maritime public and the environment 
from the hazards associated with these cargoes and the extremely 
dangerous marine conditions at the Humboldt Bay Bar. A separate NPRM to 
make permanent the regulations in this TFR will be published to allow 
public comment prior to the issuance of a final rule to make these 
regulations permanent.

Background and Purpose

    Because Humboldt Bay has a breaking bar, a narrow entrance channel, 
and no general anchorages within the bay, transits of this area present 
significant hazards to vessels carrying oil or hazardous material as 
cargo. The potential hazards to the subject vessels and the 
consequences of casualties involving commercial vessels carrying oil or 
hazardous material as cargo warrant special procedures to reduce the 
potential for a collision or grounding and the subsequent release of a 
cargo covered by this regulation.
    Prior to the issuance of this TFR, the COTP issued several 
advisories addressing safe entry procedures for vessels transporting 
cargoes of oil or other hazardous material in the Humboldt Bay area. 
The most recent was a COTP Advisory put into effect in June of 1998 
(COTP Advisory 01-98). This advisory included policies for when the bar 
would be closed to specified vessel traffic, notice requirements, 
vessel escort policies, and addressed parameters and procedures for 
waiver requests. In August of 2004, representatives from the Coast 
Guard Marine Safety Office San Francisco Bay met with Humboldt Bay 
stakeholders to review COTP Advisory 01-98. In attendance at this 
meeting were representatives from the California State Department of 
Fish and Game's Office of Oil Spill Prevention and Response, Humboldt 
Bay Coast Guard units, and local oil tank vessel operators. The COTP 
determined that although the policies contained within the COTP 
Advisory were appropriate, the policies and procedures should be 
codified into Federal Regulation to clearly establish the Coast Guard's 
authority to enforce them. In addition, it was decided that because 
Coast Guard Group Humboldt Bay is located near the Humboldt Bay Bar, 
the Group Commander would be better equipped to make timely judgments 
on bar conditions and to enforce this regulated navigation area. 
Therefore, the authority to enforce this regulated navigation is being 
delegated to the Commanding Officer of Group Humboldt Bay.
    In this particular rulemaking, the Coast Guard is designating an 
area around the Humboldt Bay Bar as a RNA for the following purposes: 
(1) To establish the Coast Guard's authority to prohibit vessels 
carrying oil or hazardous material as cargo from crossing the bar 
during unsafe conditions, (2) to establish waiver, notice, and vessel 
escort policies, and (3) to delegate the authority for enforcing these 
regulations to the Humboldt Bay Group Commander.

Discussion of Rule

    This rule designates the Humboldt Bay Bar Channel and the Humboldt 
Bay Entrance Channel as an RNA for the purpose of regulating vessels 
transporting cargoes of oil or hazardous material. The potential 
hazards associated with these products are serious enough to justify 
special procedures to reduce the possibility of a collision or 
grounding during periods of poor weather, which could lead to a release 
of the materials covered by this regulation. The regulation helps 
ensure the safety of mariners, the public, the port, and the 
environment by establishing requirements and procedures regarding: (1) 
Notice of intent to cross the bar, (2) when the bar would be closed to 
certain vessels due to weather conditions, (3) waivers, and (4) vessel 
escorts.
    If the owner, master, agent, or person in charge of a vessel to 
which the regulation applies wants to obtain a waiver to cross the bar 
when it is closed, a waiver can be requested within 4 hours of crossing 
the bar and will be considered for approval by the Group Commander, or 
his designated representative, on a case-by-case basis. As a general 
rule waivers will only be granted when the following conditions exist: 
(1) Proper permission to cross has been received, (2) sea conditions at 
the bar are less than 6 feet, (3) winds at the bar are less than 30 
knots, (4) the transit will take place during daylight hours, (5) the 
vessel has only a single tow or no tow, and (6) the visibility at the 
bar is greater than 1,000 yards.
    Deviations from the procedures and requirements of this rule are 
prohibited unless specifically authorized by the Group Commander or his 
designated representative. Vessels or persons violating this section 
may be subject to

[[Page 11547]]

the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, 
any violation of the regulations 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 also faces imprisonment from 10 
to 25 years.
    The Group Commander, acting as a representative of the Captain of 
the Port, San Francisco Bay, will enforce this regulation and has the 
authority to take steps necessary to ensure the safe transit of vessels 
in Humboldt Bay. The Group Commander can enlist the aid and cooperation 
of any Federal, State, county, and municipal agency to assist in the 
enforcement of the regulation.

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).
    The effect of this regulation is not significant for the following 
reasons: (1) Very few vessels carrying oil or hazardous material as 
cargo transit the Humboldt Bay area, and (2) those vessels carrying oil 
or hazardous material as cargo have been complying with the COTP 
advisories that established the same procedures that are being 
established by this regulation. Therefore, this rule is a continuation 
of the already established policy of monitoring the entrance and 
departure of the above-mentioned vessels. In addition, vessels will 
continue to be allowed to enter on a case-by-case basis with prior 
permission of the Group Commander, or his designated representative.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule is 
not expected to have a significant economic impact on a substantial 
number of small entities. The effect of this rule on small entities 
will not be significant for the following reasons: (1) Very few vessels 
carrying oil or hazardous material as cargo transit the Humboldt Bay 
area, and (2) those vessels carrying oil or hazardous material as cargo 
have been complying with the COTP advisories that established the same 
procedures that are being established by this regulation. Currently, 
the only entity that would be routinely subject to this regulation is 
an oil barge that makes twice-weekly transits of the Humboldt Bay Bar.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. If the 
rule will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions, options 
for compliance, or assistance in understanding this rule, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    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

[[Page 11548]]

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 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 RNA.
    A final ``Environmental Analysis Checklist'' and a final 
``Categorical Exclusion Determination'' will be available for review in 
the docket indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

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


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

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


0
2. Temporarily add Sec.  165.T11-004, to read as follows:


Sec.  165.T11-004  Regulated Navigation Area; Humboldt Bay Bar Channel 
and Humboldt Bay Entrance Channel, Humboldt Bay, California.

    (a) Location. The Regulated Navigation Area (RNA) includes all 
navigable waters of the Humboldt Bay Bar Channel and the Humboldt Bay 
Entrance Channel, Humboldt Bay, California.
    (b) Definitions. As used in this section--
    COTP means the Captain of the Port as defined in 33 CFR 1.01-30 and 
3.55-20.
    Group means Coast Guard Group Humboldt Bay.
    Group Commander means the Commanding Officer of Coast Guard Group 
Humboldt Bay.
    Hazardous Material means any of the materials or substances listed 
in 46 CFR 153.40.
    Humboldt Bay Area means the area described in the location section 
of this regulation.
    Oil means oil of any kind or in any form, including but not limited 
to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
other than dredged spoil.
    Station means Coast Guard Station Humboldt Bay.
    Tank Vessel means any vessel that is constructed or adapted to 
carry, or that carries, oil or hazardous material in bulk as cargo or 
cargo residue.
    (c) Applicability. These regulations apply to the owners and 
operators of tank vessels transporting oil or hazardous material as 
cargo within the Humboldt Bay Area.
    (d) Regulations.
    (1) In addition to the arrival and departure notification 
requirements listed in 33 CFR 160, Ports and Waterways Safety--General, 
Subpart C--Notifications of ``Arrivals, Departures, Hazardous 
Conditions, and Certain Dangerous Cargoes'', the owner, master, agent 
or person in charge of a vessel to which this notice applies shall 
obtain permission to cross within four hours of crossing the Humboldt 
Bay Bar. Between 6:30 a.m. and 10 p.m., notification/requests for 
permission can be made to Station Humboldt Bay on VHF-FM Channel 16, or 
at (707) 443-2213. If between 10 p.m. and 6:30 a.m., or if unable to 
reach the Station, notification/requests for permission can be made 
directly to Group Humboldt Bay on VHF-FM Channel 16 or at (707) 839-
6113.
    (2) Permission for a bar crossing by vessels or towing vessels and 
their tows to which this regulation applies is dependant on 
environmental and safety factors, including but not limited to: Sea 
state, winds, visibility, size and type of vessel or tow, wave period, 
time of day/night, and tidal currents. The final decision to close the 
bar rests with Humboldt Bay Group Commander or his designated 
representative. At a minimum, Humboldt Bay Bar Channel crossings by 
vessels subject to this advisory will generally not be permitted unless 
all of the following conditions exist: Proper permission to cross has 
been received, sea conditions at the bar are less than 6 feet, winds at 
the bar are less than 30 knots, the transit will take place during 
daylight hours, the vessel has only a single tow or no tow, the 
visibility at the bar is greater than 1,000 yards, and the vessel and 
tow are in proper operating condition.
    (3) If the bar is closed to vessels to which this regulation 
applies, waiver requests will be accepted within four hours of crossing 
the entrance channel. If the waiver request is made between 6:30 a.m. 
and 10 p.m., the request should be made to Station Humboldt Bay on VHF-
FM Channel 16, or at (707) 443-2213. If between 10 p.m. and 6:30 a.m., 
or if unable to reach the Station, the request can be made directly to 
Group Humboldt Bay on VHF-FM Channel 16 or at (707) 839-6113. Waiver 
requests must be made by the vessel master and must provide the 
following: A description of the proposed operation, the conditions for 
which the waiver is requested, the reasons for requesting the waiver, 
the reasons that the requester believes the proposed operation can be 
accomplished safely, and a callback phone number. The Station or Group 
Watchstander receiving the request will brief the Officer in Charge of 
the Station who will then brief the Group Commander. The authority to 
grant waivers rests with the Group Commander or his designated 
representative.
    (4) In addition to the above requirements, vessels transporting 
liquefied hazardous gasses or compressed hazardous gasses in bulk as 
cargo into or out of Humboldt Bay are required to be aided by two 
assist tugs. If the vessel carrying the gasses is towed, the tow tug 
requirement is in addition to the towing tug. The assist tugs shall 
escort the vessel through its transit and must be stationed so as to 
provide immediate assistance in response to the loss of power or 
steering of the cargo vessel, its towing tug, or loss of control over 
the tow.

[[Page 11549]]

    (5) Vessels to which this regulation applies may be required by the 
Group Commander or his designated representative to be escorted by a 
Coast Guard vessel during their transit. In addition, if a vessel 
master, agent, or pilot has concerns about the safety of a vessel's 
transit through the Humboldt Bay Entrance Channel, a Coast Guard escort 
may be requested. Requests for an escort should be directed to Station 
on VHF-FM channel 16 or at (707) 443-2213 between 6:30 a.m. and 10 
p.m., or to Group on VHF-FM channel 16 or at (707) 839-6113 if between 
10 p.m. and 6:30 a.m.
    (e) Enforcement. Acting as a representative of the Captain of the 
Port, the Humboldt Bay Group Commander will enforce this regulation and 
has the authority to take steps necessary to ensure the safe transit of 
vessels in Humboldt Bay. The Group Commander can enlist the aid and 
cooperation of any Federal, State, county, and municipal agency to 
assist in the enforcement of the regulation. All persons and vessels 
shall comply with the instructions of the Group Commander 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.
    (f) Effective Period. This rule is effective from April 8, 2005 to 
October 11, 2005.

    Dated: February 28, 2005.
Kevin J. Eldridge,
Rear Admiral, U.S. Coast Guard, District Commander, Eleventh Coast 
Guard District.
[FR Doc. 05-4599 Filed 3-8-05; 8:45 am]
BILLING CODE 4910-15-P