[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Proposed Rules]
[Pages 25511-25514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9530]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CCGD11-05-006]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes 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. This RNA includes criteria 
for when the bar would close, notice requirements, and procedures for 
waiver requests for vessels transporting oil or certain dangerous 
cargoes in bulk within Humboldt Bay.

DATES: Comments and related material must reach the Coast Guard on or 
before July 12, 2005.

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 (CCGD11-05-
006), 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

    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 any subsequent release of a 
cargo covered by this regulation.
    Prior to the issuance of this proposed rule, 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, a rulemaking was needed 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 
RNA. Therefore, the authority to enforce this RNA is being delegated to 
the Commanding Officer of Group Humboldt Bay.
    In this rulemaking, the Coast Guard proposes to designate an area 
around the Humboldt Bay Bar as an 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 Proposed Rule

    This proposed rule would designate the Humboldt Bay Bar Channel and 
the

[[Page 25512]]

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 proposed regulation. The proposed 
regulation would help to 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 proposed regulation would apply wants to obtain a waiver to 
cross the bar when it is closed, the proposed regulation states that a 
waiver can be requested up to four hours in advance of crossing the bar 
and would be considered for approval by the Group Commander, or his 
designated representative, on a case-by-case basis. As a general rule 
waivers would 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 proposed 
rule would be prohibited unless specifically authorized by the Group 
Commander. Vessels or persons violating this section may be subject to 
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 would enforce this regulation and would have 
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.
    In addition to this Notice of Proposed Rulemaking (NPRM), a 
Temporary Final Rule (TFR) was published on March 9, 2005, in the 
Federal Register (70 FR 11546), temporarily establishing regulations to 
address the issues detailed in this NPRM. The TFR will allow the Coast 
Guard to regulate vessels carrying oil or certain dangerous cargoes 
across the Humboldt Bay bar as specified in this NPRM while the public 
comment period established by this NPRM is in place. Once the comment 
period is over, the COTP intends to draft a final rule.

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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. The effect of this regulation 
would not be significant for the following reasons: (1) Very few 
vessels carrying oil or certain dangerous cargoes 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 proposed in this regulation. Therefore, 
this proposed rule would be 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 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 proposed 
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 would 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. In addition, the proposed regulations would still allow the 
regulated vessels to complete transits of the bar under favorable 
weather conditions, and the Group Commander would continue to grant 
entrance waivers on a case-by-case basis.
    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, at (510) 437-2770. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed 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

[[Page 25513]]

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 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 rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
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 would 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 rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation because it would establish an RNA.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) are 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 record-
keeping 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. Add Sec.  165.1195 to read as follows:


Sec.  165.1195  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. This section applies 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 Part 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. Notifications and requests for 
permission can be made to Station

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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, notifications 
and 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 section 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 or 
night, and tidal currents. The final decision to close the bar rests 
with Humboldt Bay Group Commander or his designated representative. 
Humboldt Bay Bar Channel crossings by vessels subject to this section 
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 section 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 requirements in paragraphs (d)(1)-(3) of 
this section, 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 assist 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.
    (5) Vessels to which this section 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.

    Dated: April 25, 2005.
Kevin J. Eldridge,
Rear Admiral, U.S. Coast Guard, District Commander Eleventh Coast Guard 
District.
[FR Doc. 05-9530 Filed 5-12-05; 8:45 am]
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