2011-9052. 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

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard will enforce a permanent increase in security zone size from 100 yards (91 meters) to 500 yards (457 meters) for tankers, cruise ships, and High Value Assets (HVAs) while underway on the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA. Once a tanker, cruise ship, or HVA is anchored or moored within the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA, the security zone will decrease from 500 yards (457 meters) to 100 yards (91 meters). Security zones are necessary to effectively protect HVAs and are only enforceable within the limits of that zone. 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 their designated representative.

DATES:

This rule is effective May 16, 2011.

ADDRESSES:

Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket are part of docket USCG-2010-1004 and are available by going http://www.regulations.gov,, inserting USCG-2010-1004, in the “keyword” box, and 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 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail Lieutenant Junior Grade Allison A. Natcher, U.S. Coast Guard Sector San Francisco; 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

On November 3, 2010, we published a notice of proposed rulemaking (NPRM) 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 in the Federal Register (75FR212). We received 5 comments on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

Experiences during security zone enforcement operations, observations during boat tactics training, and discussions with Commanding Officers/Officers in Charge and tactical coxswains from Sector San Francisco's Level I Ports, Waterways & Coastal Security (PWCS) stations, has led Enforcement staff and field units to determine that 100-yard (91 meters) security zones are not adequate enough to protect transiting vessels from sabotage, subversive acts, accidents, criminal actions, or other causes of a similar nature. A 500 yard (457 meters) security zone increases reaction time, allows proper assessment of the situation, and improves the ability of the tactical coxswains to properly execute protective measures.

Discussion of Comments and Changes

The Coast Guard received general comments on the NPRM concerned that the increased size of the security zone would increase hazards to navigation since 500 yards limits access to large portions of the San Francisco Bay. This included anchorages, leading to an increase of recreational boaters transiting through the main shipping channels. In addition, recreational boaters questioned how the security zone would be enforced when patrol boats were no longer on scene with the vessel. From this input, the Coast Guard is revising the final rule so that the Coast Guard will enforce a permanent increase in security zone size from 100 yards (91 meters) to 500 yards (457 meters) for tankers, cruise ships, and High Value Assets (HVAs) while underway on the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA. Once a tanker, cruise ship, or HVA is anchored or moored within the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA, the security zone will decrease from 500 yards (457 meters) to 100 yards (91 meters). The definition for High Interest Vessel (HIV) is being removed and will be replaced with the term HVA because it covers a broader range of vessels that require security zones.

Security zones will be enforced by Coast Guard patrol craft and other law enforcement agencies 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.

The effect of this regulation will not be significant because the 500 yard (457 meters) increase will be activated while High Value Assets (HVAs) are underway on the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA. Once the HVA is anchored or moored within the navigable waters of San Francisco Bay, Delta Ports, Monterey Bay, and Humboldt Bay, CA, the security zone will decrease from 500 yards (457 meters) to 100 yards (91 meters).

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 rule may affect owners and operators of vessels, some of which may be small entities, intending to fish, sightsee, transit, or anchor in the waters affected by these security zones. These security zones will not have a significant economic impact on a substantial number of small entities for several reasons: Small vessel traffic will be able to pass safely around the area and vessels engaged in event activities, sightseeing and commercial fishing have ample space outside of the area governed by the security zone to engage in these activities. Small entities and the maritime public will be advised of implementation of these security zones via public notice to mariners or notice of implementation published in the Federal Register.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could 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 (adjusted for inflation) 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 proposed rule will not effect 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 might 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 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. 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this proposed 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 that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. 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; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. Revise § 165.1183 to read as follows:

§ 165.1183

Security Zones; tankers, cruise ships, and High Value Assets, San Francisco Bay and Delta Ports, Monterey Bay and Humboldt Bay, California

(a) Definitions. The following definitions apply to these sections—(1) Cruise ship means any vessel over 100 gross register tons, carrying more than 500 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.

(2) High Value Asset means any waterside asset of high value including military and commercial vessels, or commercial vessels carrying CDC as defined in 33 CFR 160.204, deemed by the Captain of Port, or higher authority, as requiring protection based upon risk assessment analysis and is therefore escorted by the Coast Guard or other law enforcement vessel with an embarked Coast Guard commissioned, warrant, or petty officer.

(3) Tanker means any self-propelled tank vessel constructed or adapted primarily to carry oil or hazardous materials in bulk in the cargo spaces.

(4) 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.

(b) Locations. (1) San Francisco Bay. All waters, extending from the surface to the sea floor, within 500 yards (457 meters) ahead, astern and extending along either side of a tanker, cruise ship, or HVA underway (100 yards when anchored or moored) within the San Francisco Bay and areas shoreward of the line drawn between San Francisco Main Ship Channel buoys 7 and 8(LLNR 4190 & 4195) in positions 37°46.9′ N, 122°35.4′ W and 37°46.5′ N, 122°35.2′ W, respectively.

(2) Monterey Bay. All waters, extending from the surface to the sea floor, within 500 yards (457 meters) ahead, astern and extending along either side of a tanker, cruise ship, or HVA underway (100 yards when 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.

(3) Humboldt Bay. All waters, extending from the surface to the sea floor, within 500 yards (457 meters) ahead, astern and extending along either side of a tanker, cruise ship, or HVA underway (100 yards when anchored or moored) within the 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 8130) in position 40°46.25′ N, 124°16.13′ W.

(c) Regulations. (1) In accordance with the general regulations in § 165.33 of this part, entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port, San Francisco Bay, or a designated representative.

(2) Mariners requesting permission to transit through the security zone may request authorization to do so from the Patrol Commander (PATCOM). The PATCOM may be contacted on VHF-FM Channel 16.

(3) All persons and vessels shall comply with the instructions of the 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: March 30, 2011.

Cynthia L. Stowe,

Captain, U.S. Coast Guard, Captain of the Port, San Francisco.