[Federal Register: June 20, 2002 (Volume 67, Number 119)]
[Rules and Regulations]               
[Page 41845-41847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn02-19]                         


[[Page 41845]]

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 02-013]
RIN 2115-AA97

 
Security Zones; Cruise Ships, Port of San Diego, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is revising the effective period for a moving 
and fixed security zone 100 yards around all cruise ships that enter, 
are moored in, or depart from the Port of San Diego. This security zone 
is needed for national security reasons to protect the public and ports 
from potential subversive acts. Entry into these zones is prohibited, 
unless specifically authorized by the Capitan of the Port San Diego, or 
his designated representative.

DATES: The amendment to Sec. 165.T11-30(c) in this rule is effective 
June 20, 2002. Section 165.T11-30, added at 67 FR 6649, February 13, 
2002, effective from 11:59 p.m. PST November 5, 2001 through 11:59 p.m. 
PDT June 21, 2002, as amended in this rule, is extended in effect 
through 11:59 p.m. PST December 21, 2002.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Diego 02-013 and are available 
for inspection or copying at Coast Guard Marine Safety Office San 
Diego, 2716 North Harbor Drive, San Diego, California, 92101, between 8 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Chief Raymond Taylor, Marine Safety 
Office San Diego, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 13, 2002, we published a temporary final rule for 
cruise ships entitled ``Security Zones; Port of San Diego, California'' 
in the Federal Register (67 FR 6648) under Sec. 165.T11-030. It has 
been in effect since November 5, 2001 and is set to expire 11:59 p.m. 
PDT on June 21, 2002.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM. Due to the terrorist attacks on 
September 11, 2001 and the warnings given by national security and 
intelligence officials, there is an increased risk that further 
subversive or terrorist activity may be launched against the United 
States. A heightened level of security has been established around all 
cruise ships near the port of San Diego. These security zones are 
needed to protect the United States and more specifically the people, 
waterways, and properties near the port. The original TFR was urgently 
required to prevent possible terrorist strikes against the United 
States and more specifically the people, waterways, and properties in 
and near the port of San Diego. It was anticipated that we would assess 
the security environment at the end of the effective period to 
determine whether continuing security precautions were required and, if 
so, propose regulations responsive to existing conditions. We have 
determined the need for continued security regulations exists.
    The Coast Guard will utilize the extended effective period of this 
TFR to engage in notice and comment rulemaking to develop permanent 
regulations tailored to the present and foreseeable security 
environment with the Captain of the Port (COTP) San Diego. Therefore, 
the public will still have the opportunity to comment on this rule. The 
measures contemplated by the rule were intended to facilitate ongoing 
response efforts and prevent future terrorist attack. In this case, 
doing a NPRM will be repetitious in nature and since delay is inherent 
in the NPRM process, any delay in the effective date of this rule, is 
contrary to the public interest insofar as it may render individuals 
and facilities within and adjacent to cruise ships vulnerable to 
subversive activity, sabotage or terrorist attack. The measures 
contemplated by this rule are intended to prevent future terrorist 
attacks against individuals and facilities within or adjacent to cruise 
ships. Immediate action is required to accomplish these objectives and 
necessary to continue safeguarding these vessels and the surrounding 
area. Any delay in the effective date of this rule is impractical and 
contrary to the public interest.
    The Coast Guard will be publishing a NPRM to establish permanent 
security zones that are temporarily effective under this rule. This 
revision preserves the status quo within the Port while permanent rules 
are developed.
    For the reasons stated in the paragraphs above under 5 U.S.C. 
553(d)(3), the Coast Guard also finds that good cause exists for making 
this rule effective less than 30 days after publication in the Federal 
Register.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on commercial 
and public structures--the World Trade Center in New York and the 
Pentagon in Arlington, Virginia--killing large numbers of people and 
damaging properties of national significance. There is an increased 
risk that further subversive or terrorist activity may be launched 
against the United States based on warnings given by national security 
and intelligence officials. The Federal Bureau of Investigation (FBI) 
has issued warnings on October 11, 2001 and February 11, 2002 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan have 
made it prudent for important facilities and vessels to be on a higher 
state of alert because Osama Bin Ladin and his Al Qaeda organization, 
and other similar organizations, have publicly declared an ongoing 
intention to conduct armed attacks on U.S. interests worldwide.
    These heightened security concerns, together with the catastrophic 
impact that a terrorist attack against a cruise ship would have to the 
public interest, makes these security zones prudent on the navigable 
waterways of the United States. To mitigate the risk of terrorist 
actions, the Coast Guard has increased safety and security measures on 
the navigable waterways of the port of San Diego by establishing larger 
security zones around cruise ships. Vessels operating near cruise ships 
present possible platforms from which individuals may gain unauthorized 
access to these vessels or launch terrorist attacks upon these vessels 
or adjacent population centers. As a result, the Coast Guard is taking 
additional measures to prevent vessels or persons from accessing the 
navigable waters close to cruise ships in the port of San Diego.
    As of today, the need for security zones around cruise ships still 
exists. The effective period of this temporary final rule will extend 
through 11:59 p.m. PST December 21, 2002. This will allow the Coast 
Guard time to publish a notice of proposed rulemaking (NPRM) in the 
Federal Register, which will include a public comment period, and for a 
final rule to be put into effect without there being an interruption in 
the protection provided by cruise ship security zones.

Discussion of Rule

    This regulation extends the current security zone that prohibits 
all vessels and people from approaching cruise

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ships that are underway or moored near San Diego, California. 
Specifically, no vessel or person may close to within 100 yards of a 
cruise ship that is entering, moored in, or departing the Port of San 
Diego.
    A security zone is automatically activated when a cruise ship 
passes the San Diego sea buoy while entering port and remains in effect 
while the vessel is moored within in the Port of San Diego, California. 
When activated, this security zone will encompass a portion of the 
waterway described as a 100 yard radius around a cruise ship in the 
Port of San Diego. This security zone is automatically deactivated when 
the cruise ship passes the San Diego sea buoy on its departure from 
port. 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.
    As part of the Diplomatic Security and Antiterrorism Act of 1986 
(Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act 
(PWSA) 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. This authority, under section 7 of the PWSA (33 U.S.C. 
1226), supplements the Coast Guard's authority to issue security zones 
under The Magnuson Act regulations promulgated by the President under 
50 U.S.C. 191, including Subparts 6.01 and 6.04 of Part 6 of Title 33 
of the Code of Federal Regulations.
    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 the security zone described herein, is 
punishable by civil penalties (not to exceed $27,500 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.
    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. This 
regulation is proposed under the authority of 33 U.S.C. 1226 in 
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 
1231.

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 Transportation 
(DOT)(44 FR 11040, February 26, 1979) because these zones will 
encompass a small portion of the waterway for a limited duration.
    The Port of San Diego can accommodate only a few cruise ships 
moored at the same time. Most cruise ships calls at each location occur 
on only one day each week, and are generally less than 18 hours in 
duration. Also, vessels and people may be allowed to enter the zones on 
a case-by-case basis with authorization from the Captain of the Port.

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.
    For the same reasons stated in the Regulatory Evaluation section 
above, 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.

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 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 the person listed under FOR 
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
    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

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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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation because we are establishing security zones. 
A ``Categorical Exclusion Determination'' is available in the docket 
for inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and 
recordkeeping requirements, Security measures, Waterways.


    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

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

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.


    2. Revise temporary Sec. 165.T11-030(c) to read as follows:


Sec. 165.T11-030  Security Zones; Cruise ships, Port of San Diego.

* * * * *
    (c) Effective Dates. This section is effective at 11:59 p.m. PST on 
November 5, 2001 and will terminate at 11:59 p.m. PST on December 21, 
2002.
* * * * *

    Dated: June 12, 2002.
S.P. Metruck,
Commander, Coast Guard, Captain of the Port, San Diego, California.
[FR Doc. 02-15605 Filed 6-19-02; 8:45 am]
BILLING CODE 4910-15-P