[Federal Register Volume 67, Number 212 (Friday, November 1, 2002)]
[Proposed Rules]
[Pages 66595-66597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27849]
[[Page 66595]]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[COTP San Diego 02-026]
RIN 2115-AA97
Security Zones; Port of San Diego, CA
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish moving and fixed
security zones around and under all cruise ships that are located in
the Port of San Diego. These proposed security zones are needed for
national security reasons to protect the public and ports from
potential terrorist acts. Entry into these zones will be prohibited,
unless specifically authorized by the Captain of the Port San Diego.
DATES: Comments and related material must reach the Coast Guard on or
before November 29, 2002.
ADDRESSES: You may mail comments and related material to Coast Guard
Marine Safety Office San Diego, 2716 North Harbor Drive, San Diego,
California, 92101. The Port Operations Department 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 Port Operations Department,
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: Lieutenant Commander Rick Sorrell,
Chief, Port Operations Department, Marine Safety Office San Diego,
(619) 683-6495.
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 (COTP San
Diego 02-026), 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 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.
In our final rule, we will include a concise general statement of
the comments received and identify any changes from the proposed rule
based on the comments. If as we anticipate, we make the final rule
effective less than 30 days after publication in the Federal Register,
we will explain our good cause for doing so as required by 5 U.S.C.
553(d)(3).
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to Marine Safety Office San Diego 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
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
growing tensions in 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 Magnuson Act (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 would have on the public
interest, the Coast Guard proposes to establish security zones around
and under cruise ships entering, departing, or moored within the port
of San Diego. These security zones will help the Coast Guard prevent
vessels or persons from engaging in terrorist actions against cruise
ships. The Coast Guard believes the establishment of security zones is
prudent for cruise ships because they carry multiple passengers.
On November 4, 2001, we issued a rule under docket COTP San Diego
01-022 which was published in the Federal Register (67 FR 6648, Feb.
13, 2002) under temporary section 165.T11-030 of Title 33 of the Code
of Federal Regulations (CFR). In that rulemaking, the Coast Guard
established a rule creating 100 yard security zones around cruise ships
that enter, are moored in, or depart from the Port of San Diego.
On June 12, 2002, a change in effective period temporary rule was
issued, under docket COTP SD 02-013, and was published in the Federal
Register (67 FR 41845, June 20, 2002) under the same previous temporary
section 165.T11-030, which is set to expire at 11:59 pm on December 21,
2002. The Captain of the Port has determined the need for continued
security regulations exists. The proposed regulation differs slightly
from temporary section 165.T11-030 in one way. Although, while implicit
in the temporary rule, the security zones proposed here will be
described as extending from the water's surface to the sea floor. This
more specific description is intended to discourage unidentified scuba
divers and swimmers from coming within close proximity of a cruise
ship.
Accordingly, this rulemaking proposes to make permanent the
temporary security zones established on November 4, 2001, under docket
COTP San Diego 01-022, 33 CFR 165.T11-030 published in the Federal
Register at 67 FR 6648 (February 13, 2002). This temporary rulemaking
effective period was extended until December 21, 2002 by a notice in
the Federal Register published June 20, 2002 (67 FR 41845).
Discussion of Proposed Rule
The Coast Guard proposes to establish moving and fixed security
zones around all cruise ships that are anchored, moored, or underway
within the port of San Diego. These proposed security zones will take
effect upon the entry of any cruise ship into the waters within the San
Diego sea buoy and will remain into effect until the cruise ship passes
the San Diego sea buoy on its departure
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from the Port of San Diego. This proposed rule, for security concerns,
prohibits entry of any vessel inside the security zone surrounding a
cruise ship. These security zones are within a 100 yard radius around
any cruise ship that is anchored at a designated anchorage; that is
moored, or in the process of mooring, at any berth within the San Diego
port; and that is underway.
These security zones are needed for national security reasons to
protect cruise ships, the public, transiting vessels, adjacent
waterfront facilities, and the port from potential subversive acts,
accidents, or other events of a similar nature. Entry into these zones
will be prohibited unless specifically authorized by the Captain of the
Port or his designated representative. Vessels already moored when
these security zones take effect are not required to get underway to
avoid either the moving or fixed zones unless specifically ordered to
do so by the Captain of the Port or his designated representative.
This zone will be enforced by the official patrol, (Coast Guard
commissioned, warrant or petty officers) onboard Coast Guard vessels
and patrol craft. The official patrol may also be onboard patrol craft
and resources of any government agency that has agreed to assist the
Coast Guard in the performance of its duties. The Captain of the Port
will enforce these zones and may request the use of resources and
personnel of other government and private agencies to assist in the
patrol and enforcement of the regulation. This regulation is proposed
under the authority of 33 U.S.C. 1226 in addition to the authority
contained in 33 U.S.C. 1231 and 50 U.S.C. 191.
Vessels or persons violating this section will be subject to the
penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232 and
33 CFR part 27, 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.
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
Transportation (DOT) (44 FR 11040, February 26, l979).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under paragraph 10e of the
regulatory policies and procedures of DOT is unnecessary.
The effect of this regulation will not be significant due to the
minimal time that vessels will be restricted from the area. Also, the
zones will encompass only a small portion of the waterway. The Port of
San Diego can accommodate only a few cruise ships moored at the same
time. Most cruise ship calls at each location occur on only one day
each week, and are generally less than 18 hours in duration.
Furthermore, vessels will be able to pass safely around the zones, and
vessels and people may be allowed to enter these zones on a case-by-
case basis with permission of the Captain of the Port.
The sizes of the zones are the minimum necessary to provide
adequate protection for the cruise ships, their crews and passengers,
other vessels operating in the vicinity of the cruise ships and their
crews, adjoining areas, and the public. The entities most likely to be
affected are commercial vessels transiting the main ship channel en
route the Port of San Diego and pleasure craft engaged in recreational
activities and sightseeing. The security zones will prohibit any
commercial vessels from meeting or overtaking a cruise ship in the main
ship channels, effectively limiting the use of the channel. However,
the moving security zones will only be effective during cruise ship
transits, which will last for approximately 60 minutes. In addition,
vessels are able to safely transit around the zones while a vessel is
moored or at anchor in the Port of San Diego.
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 would not have a significant economic impact on a substantial
number of small entities. We expect this proposed rule may affect the
following entities, some of which may be small entities: The owners and
operators of private and commercial vessels intending to transit or
anchor in these small portions near the cruise ships covered by these
security zones, of the port of San Diego. The impact to these entities
would not be significant since these zones are proposed to encompass
only small portions of the waterway for limited period of times (while
the cruise ships are transiting, moored). Delays, if any, are expected
to be less than sixty minutes in duration. 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 zone to engage in these activities. When a cruise ship
is at anchor, vessel traffic will have ample room to maneuver around
the security zone. The outbound or inbound transit of a cruise ship
will last about 60 minutes. Although this regulation prohibits
simultaneous use of portions of the channel, this prohibition is of
short duration. While a cruise ship is moored, commercial traffic and
small recreational traffic will have an opportunity to coordinate
movement through the security zone with the patrol commander.
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
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LTJG Joseph Brown, Marine Safety Office San Diego, (619) 683-6495
Collection of Information
This proposed rule would call 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 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. We
invite your comments on how this proposed rule might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
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. 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 proposed 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 proposing to establishing a
security zone. A ``Categorical Exclusion Determination'' is available
in the docket where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. Add Sec. 165.1108 to read as follows:
Sec. 165.1108 Security Zones; Cruise Ships, Port of San Diego,
California.
(a) Definition. ``Cruise ship'' as used in this section means a
passenger vessel, except for a ferry, over 100 feet in length,
authorized to carry more than 12 passengers for hire; capable of making
international voyages lasting more than 24 hours, any part of which is
on the high seas; and for which passengers are embarked, disembarked or
at a port of call in the San Diego port.
(b) Location. The following areas are security zones:
(1) All waters, extending from the surface to the sea floor, within
a 100 yard radius around any cruise ship that is anchored at a
designated anchorage within the San Diego port area inside the sea
buoys bounding the port of San Diego.
(2) The shore area and all waters, extending from the surface to
the sea floor, within a 100 yard radius around any cruise ship that is
moored at any berth within the San Diego port area inside the sea buoys
bounding the Port of San Diego; and
(3) All waters, extending from the surface to the sea floor, within
a 100 yard radius around any cruise ship that is underway on the waters
inside the sea buoys bounding the Port of San Diego.
(c) Regulations. (1) In accordance with the general regulation in
Sec. 165.33 of the part, entry into or remaining in this zone is
prohibited unless authorized by the Coast Guard Captain of the Port,
San Diego or his designated representative.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port at telephone number (619) 683-6495 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 or her
designated representative.
(d) Authority: In addition to 33 U.S.C. 1231, the authority for
this section includes 33 U.S.C. 1226.
(e) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the security zone by the San Diego Port Police.
Dated: October 11, 2002.
S.P. Metruck,
Commander, US Coast Guard, Captain of the Port, San Diego, California.
[FR Doc. 02-27849 Filed 10-31-02; 8:45 am]
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