[Federal Register Volume 70, Number 68 (Monday, April 11, 2005)]
[Rules and Regulations]
[Pages 18302-18305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7219]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 05-004]
RIN 1625-AA87


Security Zones; Monterey Bay and Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 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 in, 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 4 p.m. on March 23, 2005 to 12:01 
a.m. on May 11, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP San Francisco Bay 05-004] 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)(3)(B), the Coast Guard finds that 
good cause exists for not publishing an NPRM because the threat of a 
terrorist attack against cruise ships, tank vessels, and HIVs 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. The measures contemplated by this 
rule are intended to prevent 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 would be contrary to the public interest and would 
unnecessarily expose cruise ships, tank vessels, and HIVs to potential 
terrorist attacks.

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 
Iraq have made it prudent for U.S. ports 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, tank vessel, or HIV 
would have on the public interest, the Coast Guard is establishing 
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. Neither of these 
final rules addressed security zones around cruise ships, tank vessels, 
or HIVs located in Monterey Bay or Humboldt Bay, California.
    In addition, we published a notice of proposed rulemaking (NPRM) in 
the Federal Register (69 FR 56011) on September 17, 2004, that proposed 
to make permanent these temporary security zones around cruise ships, 
tank

[[Page 18303]]

vessels, and HIVs in Monterey Bay and Humboldt Bay. In the NPRM, we 
proposed to amend 33 CFR 165.1183, ``Security Zones; Cruise Ships, Tank 
Vessels, and High Interest Vessels, San Francisco Bay and Delta ports, 
California'', to include security zones around cruise ships, tank 
vessels, and HIVs when they are located in Monterey Bay and Humboldt 
Bay, California. The final rule that will effect this change is 
published elsewhere in today's Federal Register, but will not go into 
effect until 12:01 on May 11, 2005. This temporary rule will provide 
the desired level of security for these vessels in Monterey Bay and 
Humboldt Bay until the final rule goes into effect.
    Temporary final rules similar to this one have been used in the 
past to establish 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. The first TFR was 
published in the Federal Register (69 FR 16163) on March 29, 2004. The 
second TFR was published in the Federal Register (69 FR 55502) on 
September 15, 2004.
    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' 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.
    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' N, 124[deg]16.13' 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, or his designated 
representative.
    Vessels or persons violating this section 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 a 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 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, and a civil penalty 
of not more than $25,000 for each day of a continuing violation.
    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.

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 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 (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 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork

[[Page 18304]]

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 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 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'' are 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. Add Sec.  165.T11-020, to read as follows:


Sec.  165.T11-020  Security Zones; Monterey Bay and Humboldt Bay, 
California.

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

[[Page 18305]]

    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into these security zones is 
prohibited, unless 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 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) 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 becomes effective at 4 p.m. on 
March 23, 2005, and will terminate at 12:01 a.m. on May 11, 2005.

    Dated: March 23, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco 
Bay, California.
[FR Doc. 05-7219 Filed 4-8-05; 8:45 am]
BILLING CODE 4910-15-P