2010-27704. Temporary Security Zones; San Francisco Bay, Delta Ports, Monterey Bay and Humboldt Bay, CA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

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.

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 [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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 § 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 § 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°46.9′ N, 122°35.4′ W and 37°46.5′ N, 122°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°57.10′ N, 122°01.60′ W, and Cypress Point, Monterey to the south, in position 36°34.90′ N, 121°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°46.25′ N, 124°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 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.

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 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. 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.

2. From November 3, 2010, through April 5, 2011, temporarily suspend § 165.1183 and temporarily add § 165.T11-362 to read as follows:

§ 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°46.9′ N, 122°35.4′ W and 37°46.5′ N, 122°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°57.10′ N, 122°01.60′ W and Cypress Point, Monterey to the south in position 36°34.90′ N, 121°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°46.25′ N, 124°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.