[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67620-67623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27704]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0721]
RIN 1625-AA87


Temporary Security Zones; San Francisco Bay, Delta Ports, 
Monterey Bay and Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary security zones on 
the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay 
and Humboldt Bay, CA, in support of increasing the size of security 
zones currently provided by 33 CFR 165.1183 from 100 yards to 500 
yards. These temporary security zones are necessary to effectively 
protect cruise ships, high interest vessels (HIVs), or tankers, as 
defined under 33 CFR 165.1183. Persons and vessels are prohibited from 
entering into, transiting through, or anchoring within the temporary 
security zones unless authorized by the Captain of the Port or her 
designated representative.

DATES: This rule is effective in the CFR from November 3, 2010 through 
April 15, 2011. This rule is effective with actual notice for purposes 
of enforcement from October 5, 2010, through April 15, 2011.

[[Page 67621]]


ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0721 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0721 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Ensign Liezl Nicholas, Waterways 
Management, U.S. Coast Guard Sector San Francisco, Coast Guard; 
telephone 415-399-7443, e-mail [email protected]. If you 
have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
at this time with respect to this temporary rule because it was 
contrary to the public interest to wait. The COTP has deemed this 
temporary rule as necessary because it allows the Coast Guard to better 
protect HIVs. As noted in the Discussion of the Rule section below, the 
Coast Guard has initiated a separate, notice-and-comment rulemaking 
while this temporary rule is in effect.
    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. It would be contrary to the public 
interest not to publish this rule, as it is necessary to put the Coast 
Guard in better position to afford protection to HIVs.

Basis and Purpose

    Based on experience with actual security zone enforcement 
operations, observations during boat tactics training, and discussions 
with Coast Guard experts, Sector San Francisco has concluded that the 
current 100-yard security zones are not large enough to sufficiently 
protect cruise ships, HIVs, or tankers from sabotage, other subversive 
acts, criminal actions or other causes of a similar nature. The 
increase of the security zones to 500 yards would allow reaction time 
to a vessel closing in at 20 knots to increase from 9 seconds (for 100 
yards) to 36 seconds (for 500 yards). In addition, 500 yards would 
establish a consistent standard for all escort operations in the San 
Francisco Bay area that would benefit tactical coxswains and minimize 
the potential for confusion on the part of the boating public.

Discussion of Rule

    This rule establishes temporary security zones that will be 
enforced from October 5, 2010, through April 5, 2011. This rule also 
temporarily suspends 33 CFR 165.1183. The Coast Guard has initiated a 
separate rulemaking that proposes to revise Sec.  165.1183 so that it 
contains security zones the same size as the zones established by this 
temporary final rule. The Coast Guard expects to complete that separate 
notice-and-comment rulemaking during the effective period of this 
temporary final rule. To comment on that rulemaking [Docket No. USCG-
2010-1004] for a permanent revision of Sec.  165.1183, please find our 
notice of proposed rulemaking entitled, ``Security Zone; Increase of 
Security Zones under 33 CFR 165.1183 from 100 to 500 yards; San 
Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA,'' 
published elsewhere in today's issue of the Federal Register.
    The limits of these temporary security zones include all waters in 
San Francisco Bay, extending from the surface to the sea floor, within 
500 yards ahead, astern and extending 500 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 
and 4195, positions 37[deg]46.9' N, 122[deg]35.4' W and 37[deg]46.5' N, 
122[deg]35.2' W, respectively).
    In Monterey Bay, the limits of the security zones include all 
waters, extending from the surface to the sea floor, within 500 yards 
ahead, astern and extending 500 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.
    In Humboldt Bay the limits of these temporary security zones apply 
to all waters, extending from the surface to the sea floor, within 500 
yards ahead, astern and extending 500 yards along either side of any 
cruise ship, tanker or HIV that is underway, anchored, or moored within 
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 
8230), in position 40[deg]46.25' N, 124[deg]16.13' W.
    The temporary security zones are necessary to effectively protect 
cruise ships, high interest vessels (HIV), and tankers as defined under 
33 CFR 165.1183 from sabotage or other subversive acts, criminal 
actions, or other causes of a similar nature. Persons and vessels will 
be prohibited from entering into, transiting through, or anchoring 
within the temporary safety zones unless authorized by the Captain of 
the Port, or her designated representative.
    The temporary security zones will be enforced by Coast Guard patrol 
craft and San Francisco Harbor Police as authorized by the Captain of 
the Port. See 33 CFR 6.04-11, Assistance of other agencies.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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 full Regulatory 
Evaluation is unnecessary. Most of the entities likely to be affected 
are pleasure craft engaged in recreational activities and sightseeing. 
In addition, due to National Security interests, the implementation of 
these temporary security zones is necessary for the protection of the 
United States

[[Page 67622]]

and its people. The size of the zones is the minimum necessary to 
provide adequate protection for cruise ships, HIVs, and tankers as 
defined under 33 CFR 165.1183 assets.

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.
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
or anchor in a portion of the San Francisco Bay, Delta Ports, Monterey 
Bay and Humboldt Bay from October 5, 2010 through April 5, 2011.
    The security zones will not have a significant economic impact on a 
substantial number of small entities for the following reasons. Vessel 
traffic can pass safely around the zone. Before the effective period, 
the Coast Guard will issue local notice to mariners (LNM) and broadcast 
notice to mariners (BNM) alerts via VHF-FM marine channel 16 before the 
security zone is enforced.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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). 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 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 cause 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 Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves the establishment of a 
security zone.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

[[Page 67623]]

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, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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. From November 3, 2010, through April 5, 2011, temporarily suspend 
Sec.  165.1183 and temporarily add Sec.  165.T11-362 to read as 
follows:


Sec.  165.T11-362  Temporary Security Zones; San Francisco Bay, Delta 
Ports, Monterey Bay and Humboldt Bay, CA.

    (a) Location. (1) San Francisco Bay. The limits of these security 
zones include all waters in San Francisco Bay, extending from the 
surface to the sea floor, within 500 yards ahead, astern and extending 
500 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 and 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. In Monterey Bay, the limits of the security zones 
include all waters, extending from the surface to the sea floor, within 
500 yards ahead, astern and extending 500 yards along either side of 
any cruise ship, tanker or HIV that is underway, anchored or moored 
within 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. In Humboldt Bay the limits of the security zones 
apply to all waters, extending from the surface to the sea floor, 
within 500 yards ahead, astern and extending 500 yards along either 
side of any cruise ship, tanker or HIV that is underway, anchored, or 
moored within 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 8230), in position 40[deg]46.25' N, 124[deg]16.13' W.
    (b) 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.
    Designated representative means any commissioned, warrant, and 
petty officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, State and Federal law enforcement vessels who 
have been authorized to act on the behalf of the Captain of the Port.
    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.
    (c) Enforcement period. This section will be enforced from October 
5, 2010, through April 5, 2011. If the need to enforce the security 
zones in paragraph (a) of this section terminates before this rule 
expires, the Captain of the Port will cease enforcement of the security 
zones and will announce that fact via Broadcast Notice to Mariners.
    (d) Regulations. (1) Entry into, transit through or anchoring 
within the security zones described in paragraph (a) of this section is 
prohibited unless authorized by the Captain of the Port of San 
Francisco or her designated representative.
    (2) Mariners requesting permission to transit through the security 
zone may request authorization to do so from the Patrol Commander 
(PATCOM), a designated representative. The PATCOM may be contacted on 
VHF-FM Channel 16.
    (3) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port or the designated representative.
    (4) 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.
    (5) The Coast Guard may be assisted by other Federal, State, or 
local agencies.

    Dated: October 4, 2010.
C.L. Stowe,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2010-27704 Filed 11-2-10; 8:45 am]
BILLING CODE 9110-04-P