[Federal Register Volume 70, Number 68 (Monday, April 11, 2005)]
[Rules and Regulations]
[Pages 18305-18308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7218]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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 is prohibited, unless 
specifically authorized by the Captain of the Port San Francisco Bay, 
or his designated representative.

DATES: This rule is effective starting at 12:01 a.m. on May 11, 2005.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket 
are part of docket [COTP 04-003] and are available for inspection or 
copying at the Waterways Branch of the 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, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On December 31, 2002, we published a final rule 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 published on February 26, 2004, in the Federal Register (69 FR 
8817), amended section 165.1183 to include HIVs as protected vessels in 
that section, along with cruise ships and tank vessels. Neither of 
these final rules addressed security zones around cruise ships, tank 
vessels, or HIVs located in Monterey Bay or Humboldt Bay, California.
    In order to establish similar security zones around cruise ships, 
tank vessels, and HIVs that are anchored, moored or underway in 
Monterey Bay and Humboldt Bay, California, we published a temporary 
final rule in the Federal Register (69 FR 16163) on March 29, 2004. 
That temporary final rule was later extended by a second TFR, published 
in the Federal Register (69 FR 55502) on September 15, 2004. Another 
TFR is being published elsewhere in today's Federal Register that 
provides for the desired level of security for these vessels in 
Monterey Bay and Humboldt Bay until this final rule goes into effect.
    The Captain of the Port has determined that it is in the best 
interest of homeland security to make these security zones permanent. 
Accordingly, we published a notice of proposed rule making (NPRM) on 
September 17, 2004, in the Federal Register (69 FR 56011) that proposed 
to establish security zones around cruise ships, tankers, and high 
interest vessels in Monterey Bay and Humboldt Bay through a revision to 
the already existing rule that established security zones around cruise 
ships, tankers, and high interest vessels in San Francisco Bay (67 FR 
79856). In addition, the NPRM proposed updating the definition of 
``cruise ship'' in the existing rule to match the definition in 33 CFR 
101.105 and changing the term ``tank vessel'' to ``tanker'' so that it 
would coincide with the definition in 33 CFR 160.3 and better reflect 
our intention for the rule to apply to self-propelled vessels. We 
received no letters commenting on the proposed rule. No public hearing 
was requested, and none was held.

Penalties for Violating Security Zone

    Vessels or persons violating this security zone will be subject to 
the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant 
to 33 U.S.C. 1232, any violation of the 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 up to 6 years and a maximum fine of 
$250,000), and in rem liability against the offending vessel. Any 
person who violates this section, using a dangerous weapon, or who 
engages in conduct that causes bodily injury or fear of imminent bodily 
injury to any officer authorized to enforce this

[[Page 18306]]

regulation, also faces imprisonment up to 12 years. Vessels or persons 
violating this section are also subject to the penalties set forth in 
50 U.S.C. 192: seizure and forfeiture of the vessel to the United 
States, a maximum criminal fine of $10,000, and imprisonment up to 10 
years.
    The Captain of the Port will enforce 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.

Background and Purpose

    In its effort to thwart potential 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 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 
establishing 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 result in increased security by providing a 
standoff distance for blast and collision, a surveillance and detection 
perimeter, and a margin of response time for security personnel, and 
are necessary to safeguard these types of vessels, their passengers and 
crew, and the surrounding areas and communities from sabotage or other 
criminal or subversive acts.
    This rule, for security reasons, prohibits the entry of any vessel 
or person inside the security zone without specific authorization from 
the Captain of the Port, or his designated representative. Due to 
heightened security concerns and the catastrophic impact a terrorist 
attack on one of these vessels would have on the public, environment, 
surrounding areas, and nearby communities, establishing security zones 
is a prudent and necessary action for these vessels.

Discussion of Comments and Changes

    We received no letters commenting on the proposed rule. No public 
hearing was requested, and none was held.

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).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary. Although this regulation restricts access to a 
portion of navigable waters, the effect of this regulation is not 
significant because: (i) The zones only encompass 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, tankers, 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 will 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 for several reasons: (i) Vessel traffic is able to pass safely 
around the area, (ii) vessels engaged in recreational activities, 
sightseeing and commercial fishing have ample space outside of the 
security zones to engage in these activities, and (iii) 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 (Public Law 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 or 
options for compliance, please contact Lieutenant Doug Ebbers, 
Waterways Management Branch, U.S. Coast Guard Marine Safety Office San 
Francisco Bay, (510) 437-2770.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
Regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-800-REG-FAIR 
(1-888-734-3247).

Collection of Information

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

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments or 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

[[Page 18307]]

effects of this rule elsewhere in this preamble.

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

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

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 it establishes security zones.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' (CED) are available in the 
docket where indicated 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. 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.
    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.
    Tanker means any self-propelled tank vessel constructed or adapted 
primarily to carry oil or hazardous materials in bulk in the cargo 
spaces.
    (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 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.

[[Page 18308]]

    (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: March 23, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco 
Bay, California.
[FR Doc. 05-7218 Filed 4-8-05; 8:45 am]
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