[Federal Register: June 24, 2002 (Volume 67, Number 121)]
[Rules and Regulations]               
[Page 42486-42488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn02-8]                         

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 01-012]
RIN 2115-AA97

 
Security Zones; San Francisco Bay, San Francisco, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; change in effective period.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is revising the effective period of moving and 
fixed security zones extending 100 yards around all cruise ships and 
tank vessels that enter, are moored in, or depart from the San 
Francisco Bay and Delta ports, California. These security zones are 
needed for national security reasons to protect the public and ports 
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: The amendment to Sec. 165.T11-098(c) in this rule is effective 
June 20, 2002. Section 165.T11-098, added at 67 FR 7613, February 20, 
2002, effective from 11:59 p.m. PST on December 21, 2001, to 11:59 p.m. 
PDT on June 21, 2002, as amended in this rule, is extended in effect to 
11:59 p.m. PST on December 21, 2002.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Francisco Bay 01-012 and are 
available for inspection or copying at Coast Guard 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 Ross Sargent, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 20, 2002, we published a temporary final rule (TFR) for 
cruise ships and tank vessels in San Francisco Bay and Delta ports 
entitled ``Security Zones; San Francisco Bay, San Francisco, CA'' in 
the Federal Register (67 FR 7611) under Sec. 165.T11-098. It has been 
in effect since December 21, 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), the Coast Guard finds that good 
cause exists for not publishing an 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 and tank vessels in San Francisco Bay and Delta ports. 
These security zones are needed to protect the United States and more 
specifically the people, waterways, and properties near the ports.
    The original temporary final rule was urgently required to prevent 
possible terrorist strikes against the United States and more 
specifically the people, waterways, and properties in and near the San 
Francisco and Delta ports. 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 created 
by 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 Francisco Bay. 
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, issuing a NPRM would delay the effective date of 
this rule; such a delay would be contrary to the public interest 
insofar as it may render individuals and facilities within and adjacent 
to cruise ships and tank vessels 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 and tank vessels. 
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 Ports while permanent 
regulations 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

    Based on the September 11, 2001, terrorist hijackings and attacks 
on the World Trade Center in New York, the Pentagon in Arlington, 
Virginia, there is an increased risk that subversive activity could be 
launched by vessels or persons in close proximity to the San Francisco 
Bay and Delta ports, against cruise ships and tank vessels entering, 
departing, or moored within the San Francisco Bay and Delta ports. The 
terrorist acts against the United States on September 11, 2001, have 
increased the need for safety and security measures on U.S. ports and 
waterways.
    In response to these terrorist acts, and in order to prevent 
similar occurrences,

[[Page 42487]]

the Coast Guard has established a security zone around cruise ships and 
tank vessels to protect persons, transiting vessels, adjacent 
waterfront facilities, and the adjacent land of the San Francisco Bay 
and Delta ports. These security zones are necessary to prevent damage 
or injury to any vessel or waterfront facility, and to safeguard ports, 
harbors, or waters of the United States near the San Francisco and 
Delta ports.
    As of today, the need for security zones around cruise ships and 
tank vessels still exist. This temporary final rule will extend these 
zones that were set to expire June 21, 2002, for 6 months--from June 
21, 2002, to 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 and tank vessel security zones.

Discussion of Rule

    This regulation extends the current security zone that prohibits 
all vessels and people from approaching cruise ships and tank vessels 
that are underway or moored in the San Francisco Bay and Delta ports. 
Specifically, no vessel or person may close to within 100 yards of a 
cruise ship or tank vessel that is entering, moored, or departing the 
San Francisco Bay and Delta ports.
    A security zone is automatically activated when a cruise ship or 
tank vessel passes a 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 & 37 deg.46.5' N, 122 deg.35.2' W, respectively) while 
entering port and remains in effect while the vessel is moored within 
in the San Francisco Bay and Delta ports. When activated, this security 
zone will encompass a portion of the waterway described as a 100 yard 
radius around a cruise ship or tank vessel in the San Francisco Bay and 
Delta ports. This security zone is automatically deactivated when the 
cruise ship or tank vessel passes a 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 & 37 deg.46.5' N, 122 deg.35.2' W, 
respectively) 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, l979). The size of the zones are the 
minimum necessary to provide adequate protection for cruise ships and 
tank vessels, their crews, other vessels and crews operating in the 
vicinity of cruise ships and tank vessels, adjoining areas and the 
public. These zones will encompass a small portion of the waterway for 
a limited 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. Any hardships experienced by persons or vessels are 
considered minimal compared to the national interest in protecting 
cruise ships and tank vessels, their crews and the public.

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. The security zones will not have a significant economic 
impact on a substantial number of small entities for several reasons: 
Small vessel traffic can 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. When a cruise ship or tank vessel is at anchor, vessel 
traffic will have ample room to maneuver around the security zones. 
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 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

[[Page 42488]]

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 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 a security 
zone. 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 Sec. 165.T11-098 to read as follows:


Sec. 165.T11-098  Security Zones; San Francisco Bay and Delta ports

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

    Dated: June 12, 2002.
L.L. Hereth,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 02-15966 Filed 6-20-02; 2:17 pm]
BILLING CODE 4910-15-P