[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Rules and Regulations]
[Pages 49490-49492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16794]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD11-05-006]
RIN 1625-AA11


Regulated Navigation Area; Humboldt Bay Bar Channel and Humboldt 
Bay Entrance Channel, Humboldt Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing the Humboldt Bay Bar Channel 
and the Humboldt Bay Entrance Channel as a Regulated Navigation Area 
(RNA) for certain commercial vessels transporting oil or hazardous 
material as cargo. This action is necessary to reduce significant 
hazards to subject vessels, the port and the public that are present 
during periods of poor weather conditions. The RNA codifies existing 
Captain of the Port San Francisco Bay (COTP) policies for vessels 
transporting oil or certain dangerous cargoes in bulk within Humboldt 
Bay.

DATES: This rule is effective starting at 12:01 a.m. on September 23, 
2005.

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 CGD11-05-006 and are available for inspection or 
copying at the Waterways Branch of the 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 Ian Callander, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, and (510) 437-3401.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On May 13, 2005, we published a Notice of Proposed Rule Making 
(NPRM) entitled, Regulated Navigation Area; Humboldt Bay Bar Channel 
and Humboldt Bay Entrance Channel, Humboldt Bay, CA, in the Federal 
Register (70 FR 25511). We received one comment on the proposed rule. 
No public meeting was requested, and none was held.
    Vessels or persons violating this section are 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 $32,500 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 Sector Commander will enforce this regulation and has the 
authority, as delegated by the Captain of the Port, San Francisco Bay, 
to take steps necessary to ensure the safe transit of vessels in 
Humboldt Bay. The Sector Commander can enlist the aid and cooperation 
of any Federal, State, county, and municipal agency to assist in the 
enforcement of the regulation.

Background and Purpose

    Because Humboldt Bay has a breaking bar, a narrow entrance channel, 
and no general anchorages within the bay, transits of this area present 
significant hazards to vessels carrying oil or hazardous material as 
cargo. The potential hazards to the subject vessels and the 
consequences of casualties involving commercial vessels carrying oil or 
hazardous material as cargo warrant special procedures to reduce the 
potential for a collision or grounding and any subsequent release of a 
cargo covered by this regulation.
    In this particular rulemaking, the Coast Guard designates an area 
around the Humboldt Bay Bar as an RNA for the following purposes: (1) 
To establish the Coast Guard's authority to prohibit vessels carrying 
oil or hazardous material as cargo from crossing the bar during unsafe 
conditions, (2) to establish waiver, notice, and vessel escort 
policies, and (3) to delegate the authority for enforcing these 
regulations to the Sector/Air Station Humboldt Bay Commander.

Discussion of Comments and Changes

    We received one comment on the proposed rule. No public hearing was 
requested, and none was held. The comment we received noted that Group 
Humboldt Bay would be stood-down and incorporated into Sector/Air 
Station Humboldt Bay prior to the publishing of this final rule. `Group 
Humboldt Bay' and `Group Commander' have been replaced with `Sector/Air 
Station Humboldt Bay' and `Sector Commander' respectively in this final 
rule. Because this change does not have a substantive impact on the 
regulation, we feel that making this change does not warrant an 
extension to the public comment period provided by the NPRM.

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 Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary. The effect of this regulation would not be 
significant for the following reasons: (1) Very few vessels carrying 
oil or certain dangerous cargoes transit the Humboldt Bay area, and (2) 
those vessels carrying oil or hazardous material as cargo have been 
complying with the COTP advisories that established the same procedures 
that are established in this regulation. Therefore, this rule would be 
a continuation of the already established policy of monitoring the 
entrance and departure of the above-mentioned

[[Page 49491]]

vessels. In addition, vessels will continue to be allowed to enter on a 
case-by-case basis with prior permission of the Sector Commander or his 
designated representative.

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 is 
not expected to have a significant economic impact on a substantial 
number of small entities. The effect of this rule on small entities 
would not be significant for the following reasons: (1) Very few 
vessels carrying oil or hazardous material as cargo transit the 
Humboldt Bay area, and (2) those vessels carrying oil or hazardous 
material as cargo have been complying with the COTP advisories that 
established the same procedures that are being established by this 
regulation. In addition, the regulation would still allow the regulated 
vessels to complete transits of the bar under favorable weather 
conditions, and the Sector Commander would continue to grant entrance 
waivers on a case-by-case basis.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), 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 1-800-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 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 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 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 would 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 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 Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because it would establish an RNA.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' (CED) 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, Waterways.


[[Page 49492]]



0
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

0
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.


0
2. Add Sec.  165.1195, to read as follows:


Sec.  165.1195  Regulated Navigation Area; Humboldt Bay Bar Channel and 
Humboldt Bay Entrance Channel, Humboldt Bay, California.

    (a) Location. The Regulated Navigation Area (RNA) includes all 
navigable waters of the Humboldt Bay Bar Channel and the Humboldt Bay 
Entrance Channel, Humboldt Bay, California.
    (b) Definitions. As used in this section--
    COTP means the Captain of the Port as defined in Title 33, Code of 
Federal Regulations, Section 1.01-30 and 3.55-20.
    Sector means Coast Guard Sector/Air Station Humboldt Bay.
    Sector Commander means the Commanding Officer of Coast Guard 
Sector/Air Station Humboldt Bay.
    Hazardous Material means any of the materials or substances listed 
in 46 CFR 153.40.
    Humboldt Bay Area means the area described in the location section 
of this regulation.
    Oil means oil of any kind or in any form, including but not limited 
to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
other than dredged spoil.
    Station means Coast Guard Station Humboldt Bay.
    Tank Vessel means any vessel that is constructed or adapted to 
carry, or that carries, oil or hazardous material in bulk as cargo or 
cargo residue.
    (c) Applicability. These regulations apply to the owners and 
operators of tank vessels transporting oil or hazardous material as 
cargo within the Humboldt Bay Area.
    (d) Regulations. (1) In addition to the arrival and departure 
notification requirements listed in title 33 CFR, part 160, Ports and 
Waterways Safety--General, subpart C--Notifications of ``Arrivals, 
Departures, Hazardous Conditions, and Certain Dangerous Cargoes'', the 
owner, master, agent or person in charge of a vessel to which this 
notice applies shall obtain permission to cross within four hours of 
crossing the Humboldt Bay Bar. Between 6:30 a.m. and 10 p.m., 
notification/requests for permission can be made to Station Humboldt 
Bay on VHF-FM Channel 16, or at (707) 443-2213. If between 10 p.m. and 
6:30 a.m., or if unable to reach the Station, notification/requests for 
permission can be made directly to Sector/Air Station Humboldt Bay on 
VHF-FM Channel 16 or at (707) 839-6113.
    (2) Permission for a bar crossing by vessels or towing vessels and 
their tows to which this regulation applies is dependent on 
environmental and safety factors, including but not limited to: Sea 
state, winds, visibility, size and type of vessel or tow, wave period, 
time of day/night, and tidal currents. The final decision to close the 
bar rests with Humboldt Bay Sector Commander or his designated 
representative. At a minimum, Humboldt Bay Bar Channel crossings by 
vessels subject to this advisory will generally not be permitted unless 
all of the following conditions exist: Proper permission to cross has 
been received, sea conditions at the bar are less than 6 feet, winds at 
the bar are less than 30 knots, the transit will take place during 
daylight hours, the vessel has only a single tow or no tow, the 
visibility at the bar is greater than 1,000 yards, and the vessel and 
tow are in proper operating condition.
    (3) If the bar is closed to vessels to which this regulation 
applies, waiver requests will be accepted within four hours of crossing 
the entrance channel. If the waiver request is made between 6:30 a.m. 
and 10 p.m., the request should be made to Station Humboldt Bay on VHF-
FM Channel 16, or at (707) 443-2213. If between 10 p.m. and 6:30 a.m., 
or if unable to reach the Station, the request can be made directly to 
Sector/Air Station Humboldt Bay on VHF-FM Channel 16 or at (707) 839-
6113. Waiver requests must be made by the vessel master and must 
provide the following: A description of the proposed operation, the 
conditions for which the waiver is requested, the reasons for 
requesting the waiver, the reasons that the requester believes the 
proposed operation can be accomplished safely, and a callback phone 
number. The Station or Sector Watchstander receiving the request will 
brief the Officer in Charge of the Station who will then brief the 
Sector Commander. The authority to grant waivers rests with the Sector 
Commander or his designated representative.
    (4) In addition to the requirements in paragraphs (d)(1)-(3) of 
this section, vessels transporting liquefied hazardous gases or 
compressed hazardous gases in bulk as cargo into or out of Humboldt Bay 
are required to be aided by two assist tugs. If the vessel carrying the 
gases is towed, the assist tug requirement is in addition to the towing 
tug. The assist tugs shall escort the vessel through its transit and 
must be stationed so as to provide immediate assistance in response to 
the loss of power or steering of the cargo vessel, its towing tug, or 
loss of control over the tow.
    (5) Vessels to which this regulation applies may be required by the 
Sector Commander or his designated representative to be escorted by a 
Coast Guard vessel during their transit. In addition, if a vessel 
master, agent, or pilot has concerns about the safety of a vessel's 
transit through the Humboldt Bay Entrance Channel, a Coast Guard escort 
may be requested. Requests for an escort should be directed to Station 
on VHF-FM channel 16 or at (707) 443-2213 between 6:30 a.m. and 10 
p.m., or to Sector on VHF-FM channel 16 or at (707) 839-6113 if between 
10 p.m. and 6:30 a.m.
    (e) Enforcement. Acting as a representative of the Captain of the 
Port, the Humboldt Bay Sector Commander will enforce this regulation 
and has the authority to take steps necessary to ensure the safe 
transit of vessels in Humboldt Bay. The Sector Commander can enlist the 
aid and cooperation of any Federal, State, county, and municipal agency 
to assist in the enforcement of the regulation. All persons and vessels 
shall comply with the instructions of the Sector Commander or the 
designated on-scene patrol personnel. Patrol personnel comprise 
commissioned, warrant, and petty officers of the Coast Guard onboard 
Coast Guard, Coast Guard Auxiliary, local, State, and Federal law 
enforcement vessels.
    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.

    Dated: August 8, 2005.
K.J. Eldridge,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 05-16794 Filed 8-23-05; 8:45 am]
BILLING CODE 4910-15-P