Statutory Authorization

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations
1890. If you have questions on viewing
the docket, call Andrea M. Jenkins,
Program Manager, Docket Operations,
telephone (202) 366–0271.
SUPPLEMENTARY INFORMATION:

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 107 and 165

Regulatory Information

[USCG–2004–17509]
RIN 1625–AA86

Unauthorized Entry Into Cuban
Territorial Waters
Coast Guard, DHS.
Final rule.

AGENCY:
ACTION:

The Coast Guard, pursuant to
Presidential proclamation and order of
the Secretary of Homeland Security, and
after consultation with several
Departments and agencies, is requiring
U.S. vessels, and vessels without
nationality, less than 100 meters (328
feet), located within the internal waters
or the 12 nautical mile territorial sea of
the United States, that thereafter enter
Cuban territorial waters, to apply for
and receive a Coast Guard permit. In
establishing this requirement, the Coast
Guard is also removing the security
zone in the coastal waters adjacent to
Florida and incorporating many of its
requirements into this rule. That
security zone required non-public
vessels less than 50 meters (165 feet)
that intended to enter Cuban territorial
waters to receive Coast Guard
authorization. This rule is necessary to
provide for the safety of United States
citizens and residents who may be
subject to excessive force, including
deadly force, upon entering Cuban
territorial waters, to improve
enforcement of the embargo against the
Government of Cuba, and to prevent a
threatened disturbance of the
international relations of the United
States.
SUMMARY:

DATES:

This rule is effective on July 2,

2004.
Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket are part
of docket USCG–2004–17509, and are
available for inspection or copying at
room PL–401 on the Plaza level of the
Nassif Building, 400 Seventh Street
SW., Washington DC, 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays. You may also find this docket
on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call
Lieutenant Commander Brad
Kieserman, Office of Law Enforcement
(G–OPL), U.S. Coast Guard
Headquarters, telephone (202) 267–
ADDRESSES:

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

Pursuant to 5 U.S.C. 553(a)(1), we did
not publish a notice of proposed
rulemaking (NPRM) for this regulation.
This provision exempts traditional
notice and comment rulemaking under
the Administrative Procedure Act ‘‘to
the extent that there is involved * * *
a military or foreign affairs function of
the United States.’’ The Coast Guard
finds that immediate establishment of
this rule is necessary to protect the
safety of lives and property at sea,
including lives that may be endangered
by the use of excessive or deadly force
by the Government of Cuba, to improve
enforcement of the economic sanctions
against the Government of Cuba, and to
prevent threatened disturbance of the
international relations of the United
States. This rule is necessary to
implement U.S. foreign policy and is
enforceable using the Coast Guard’s
military assets. Accordingly, this rule
involves a military function of the
United States, and pursuant to section 1
of Proclamation 7757, this rule involves
a foreign affairs function of the United
States.
Even if the requirements of 5 U.S.C.
553 would otherwise be applicable, the
Coast Guard for good cause finds that,
under 5 U.S.C. 553(b)(B) and (d)(3),
notice and public comment on the rule
before the effective date of the rule and
advance publication are impracticable
and contrary to the public interest. On
February 26, 2004, the President
continued the national emergency
relating to Cuba. 69 FR 9513. Also, on
that day, the President, in Proclamation
7757, expanded the scope of that
emergency and the emergency authority
relating to the regulation and movement
of vessels into Cuban territorial waters.
69 FR 9515. The President set out
twelve reasons why there existed a
worsening of the threat to U.S.
international relations. These reasons
included a threat of excessive force,
including deadly force, against persons
on board U.S. vessels, and sufficiently
grave Cuban government actions to
warrant a U.S. warning to Cuba that a
mass migration would be viewed as a
hostile act. Thus, the President directed
the Secretary to take action (69 FR at
9516). Immediate action is needed to
protect the safety of lives and property
at sea, to improve enforcement of the
economic sanctions against the
Government of Cuba, and to prevent

PO 00000

Frm 00001

Fmt 4701

Sfmt 4700

41367

threatened disturbance to the
international relations of the United
States. This rule is based upon a
Presidential declaration of a national
emergency and order of the Secretary of
Homeland Security. Opportunity for
notice and public comment or advance
publication of the rule was
impracticable because of the need to
take immediate action. This regulation
is tailored to meet the needs of national
security and the international relations
of the United States, with a minimal
burden on the public.
Background and Purpose
On March 1, 1996, the President of
the United States signed Proclamation
6867 (‘‘Proclamation 6867’’), declaring a
national emergency following the
February 24, 1996, shooting down of
two Brothers to the Rescue aircraft by
Cuban armed forces (61 FR 8843). In
Proclamation 6867, which addressed the
disturbances or threatened disturbances
of United States international relations,
the President authorized the Secretary
of Transportation to regulate the
anchorage and movement of domestic
and foreign vessels (61 FR 8843). Order
No. 96–3–7, signed by the Secretary of
Transportation, delegated this authority
to the Commandant, United States Coast
Guard (61 FR 9219). This authority was
further delegated to the Commander,
Seventh Coast Guard District and
appropriate Captains of the Port (61 FR
9219). To secure the rights and
obligations of the United States and to
protect its citizens and residents from
the use of excessive force upon them by
foreign powers, the Coast Guard on
March 1, 1996 (61 FR 9348), pursuant to
its regulatory authority in 50 U.S.C. 191
and as supplemented by the authority
delegated to the Secretary of
Transportation in the Presidential
Proclamation, established a security
zone within the internal waters and
territorial seas of the United States,
adjacent to or within the coastal waters
around southern Florida. This security
zone prohibited private, noncommercial
vessels, including foreign vessels, less
than 50 meters in length, from departing
the security zone with the intent to
enter Cuban territorial waters, absent
express authorization from the Captain
of the Port (COTP).
On May 14, 1997 (62 FR 26390), the
Coast Guard published a rule revising
the security zone to prohibit a similar
class of vessels from getting underway
in or departing the security zone with
the intent to enter Cuban territorial
waters without express authorization
from the COTP. Under the revised
security zone, commercial vessels less
than 50 meters in length became subject

E:\FR\FM\08JYR4.SGM

08JYR4

41368

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations

to the same restrictions as private,
noncommercial vessels less than 50
meters in length.
On July 17, 1998 (63 FR 38476), the
Coast Guard published a rule again
revising the security zone by expanding
its geographic scope to the Florida
peninsula, encompassing all of the
internal waters and territorial seas of the
United States adjacent to or within the
State of Florida and within the
boundaries of the Seventh Coast Guard
District.
On November 2, 2000, the Coast
Guard revised the security zone to better
define enforcement and the process for
applying for a permit to depart the zone
(65 FR 65783).
On February 26, 2004, in
Proclamation 7757 (69 FR 9515), the
President of the United States expanded
the scope of the national emergency and
emergency authority declared in
Proclamation 6867, and amended the
reasons for which there exists a
disturbance or threatened disturbance of
the international relations of the United
States. In Proclamation 7757, the
President declared, inter alia, that: The
United States has determined that Cuba
is a state sponsor of terrorism; the
Cuban government has demonstrated a
ready and reckless willingness to use
excessive force, including deadly force,
against U.S. citizens and its own
citizens; the entry of U.S.-registered
vessels into Cuban territorial waters
could result in injury to, or loss of life
of, persons engaged in such conduct;
Cuba has impounded U.S.-flagged
vessels and forced them as a condition
of release to violate U.S. laws; the
objectives of the United States policy
regarding Cuba are the end of the
dictatorship and a rapid, peaceful
transition to a representative democracy
respectful of human rights and
characterized by an open market
economic system; a critical initiative to
advance U.S. objectives is to deny
resources to the repressive Cuban
government; and the Cuban government
has recently and over the last year taken
a series of steps to destabilize relations
with the United States, causing a
sudden and worsening disturbance of
U.S. international relations.
Consequently, the President has
determined that the unauthorized entry
of U.S.-registered vessels and vessels
subject to the jurisdiction of the U.S.
(which includes, but is not limited to,
vessels without nationality pursuant to
46 U.S.C. App. 1903) into Cuban
territorial waters is detrimental to the
foreign policy of the United States,
which is to deny monetary and material
support to the repressive Government of
Cuba, and that such unauthorized

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

entries could threaten a disturbance of
the international relations of the United
States by facilitating Cuban government
support of terrorism, the use of
excessive or deadly force, and the
continued existence of the Cuban
government. Thus, the President
continued and expanded the basis for
continuing the declared emergency and
the finding of a threatened disturbance
of the international relations of the
United States to include the
unauthorized entry of certain vessels of
the United States into Cuban territorial
waters.
We have placed in the docket a copy
of the President’s Rose Garden
Statement of October 10, 2003, in which
the President announced new initiatives
to strengthen enforcement of trade and
travel restrictions with respect to Cuba.
This announcement is in furtherance of
long-standing U.S. foreign policy to
bring about in Cuba the peaceful
transition to democracy.
The United States imposes economic
sanctions against Cuba to restrict the
flow of currency transactions and goods
to Cuba. The U.S. Department of
Treasury’s Office of Foreign Assets
Control (OFAC) regulates transactions
involving Cuba, and the U.S.
Department of Commerce, Bureau of
Industry and Security (BIS) regulates
exports, including ships and ship-stores.
Among other things, Proclamation
7757 authorizes the Secretary of
Homeland Security (‘‘the Secretary’’) to
issue rules and regulations to ensure
that Coast Guard decisions regarding
entry of U.S. vessels into Cuban
territorial waters are made in a manner
consistent with the decisions of other
agencies responsible for economic
sanctions enforcement. Specifically, in
section 1 of Proclamation 7757, the
President authorized the Secretary to
make rules and regulations governing
the anchorage and movement of any
vessel, foreign or domestic, in the
territorial waters of the United States,
which may be used, or is susceptible of
being used, for voyage into Cuban
territorial waters and that may create
unsafe conditions, or result in
unauthorized transactions, and thereby
threaten a disturbance of international
relations.
In Order 2004–001, the Secretary
delegated to the Commandant of the
Coast Guard and, subject to the
direction of the Commandant, to the
several Coast Guard Area and District
Commanders, the authority to make
such rules and regulations, and vested
in the Commandant and those officers
all powers and authorities given to the
Secretary in Proclamation 7757. This
delegation to the Coast Guard from the

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

Secretary necessarily includes the
authority to establish and enforce rules
and regulations regarding the movement
and anchorage of certain vessels of the
United States, and vessels without
nationality, in U.S. territorial waters,
including a requirement for the owners,
agents, masters, officers, persons in
charge, and members of the crew of
such vessels to present evidence of
compliance with the regulations
implementing economic sanctions
against Cuba as a condition of usage of,
and operations in, U.S. territorial
waters. This rule, therefore, requires any
vessel of the United States,1 and vessels
without nationality, less than 100
meters (328 feet) in length (and all
associated auxiliary vessels) and the
owners, agents, masters, officers,
persons in charge, and members of the
crew of such vessels that depart U.S.
territorial waters and thereafter enter
Cuban territorial waters, regardless of
whether such entry is made after an
intervening entry into, passage through,
or departure from any other foreign
territory or territorial waters, to obtain a
written permit from the Commander,
Seventh Coast Guard District, or the
District Commander’s designee.
This rule does not apply to foreign
flag vessels. The security zone removed
by this rule applied to foreign flag
vessels, except those in innocent
passage. The security zone removed by
this rule applied to vessels less than 50
meters (165 feet) in length. This rule
applies to U.S. vessels, and vessels
without nationality, less than 100
meters (328 feet) in length. U.S. vessels
100 meters and longer that enter Cuban
territorial waters generally hold
appropriate export licenses. Thus, this
rule covers those vessels that generally
do not hold appropriate export licenses.
Such vessels must apply for and hold
those licenses as a condition precedent
to apply for a Coast Guard permit.
Further, Proclamation 7757 provides
that the Secretary is authorized to
receive assistance from other
government agencies as necessary to
carry out its purpose. Coupled with 14
U.S.C. 141, Proclamation 7757 provides
the direction and authority to the Coast
Guard to assist other agencies in the
enforcement of the economic sanctions
and receive assistance from other
agencies in the enforcement of this rule.
Accordingly, in order for covered
vessels to receive a Coast Guard permit
to enter Cuban territorial waters, the
Coast Guard will require the permit
application to include a copy of a valid
1 See 46 U.S.C. Chapters 121 and 123; 46 U.S.C.
App. 1903; Art. 6, United Nations Convention on
the Law of the Sea (UNCLOS).

E:\FR\FM\08JYR4.SGM

08JYR4

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations
and applicable license issued to the
applicant by the U.S. Department of
Commerce, Bureau of Industry and
Security (BIS), pursuant to the Export
Administration Regulations, 15 CFR
chapter VII, subchapter C, parts 730–774
for the export of the vessel to Cuba. The
Coast Guard will also require the permit
application to include a copy of a valid
and applicable specific license issued
by the U.S. Department of the Treasury
(OFAC), pursuant to the Cuban Assets
Control Regulations, 31 CFR part 515,
authorizing the applicant’s travelrelated transactions in Cuba. Applicants
who do not require such an OFAC
specific license are required to make a
written certification to that effect
identifying which OFAC general license
applies or explaining why no OFAC
license is required. Applications must
provide the documentation required for
each person to which this rule applies
on board the particular vessel. The
Coast Guard will work closely with
OFAC and BIS to ensure alignment of
effort in the enforcement of the
economic sanctions against Cuba. This
will allow the Coast Guard to ensure
that its decisions on permits for entry
into Cuban territorial waters are made in
a manner which is consistent with the
decisions of those agencies responsible
for economic sanctions enforcement.
This rule removes the security zone
around the Florida peninsula, because it
is no longer necessary as the new rule
applies nation-wide to all covered
vessels and persons within U.S.
territorial waters.
This rule will continue so long as the
national emergency and regulatory
authority as declared by the President in
Presidential Proclamation 6867, and
expanded in scope by Proclamation
7757, continues pursuant to section
202(d) of the National Emergencies Act
(50 U.S.C. 1622(d)). The Coast Guard
intends to publish annually in the
Federal Register a notice of the status of
this rule.
Discussion of Rule
This rule creates a new 33 CFR part
107 to establish a place in the CFR for
nation-wide vessel and facility control
measures and limited access areas. This
new part is placed within subchapter H
of chapter I, title 33, as a follow-on to
the national maritime security rules
published last year (68 FR 60448; 68 FR
39240). The Coast Guard intends that
this and any other nation-wide
measures regarding control of vessels or
facilities, or the establishment of nationwide limited access areas (security
zones, safety zones, or other types of
limited or controlled access areas), for
purposes of maritime security, will be

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

placed in new 33 CFR part 107. Local
and regional regulated navigation areas
and limited access areas will continue
to be placed in 33 CFR part 165.
The Coast Guard has determined that
controlling entry of U.S. vessels, and
vessels without nationality, into Cuban
waters and controlling the departure of
U.S. vessels, and vessels without
nationality, bound for Cuba is necessary
to protect the safety of United States
citizens and residents, to improve
enforcement of the economic sanctions
against the Government of Cuba, and to
prevent threatened disturbance of the
international relations of the United
States.
This rule applies to vessels of the
United States (individually or
corporately owned), and vessels without
nationality, less than 100 meters (328
feet) in length (and all associated
auxiliary vessels) and the owners,
agents, masters, officers, persons in
charge, and members of the crew of
vessels of the United States and vessels
without nationality, located within U.S.
territorial waters that depart those
waters and thereafter enter Cuban
territorial waters, regardless of whether
such entry is made after an intervening
entry into, passage through, or departure
from any other foreign territory or
territorial waters. Accordingly, the rule
continues to apply to a covered vessel
that departs U.S. territorial waters and
enters the territorial waters of a third
country before entering Cuban waters.
The rule may be enforced against U.S.
vessels or vessels without nationality
that have operated within the U.S. 12
nautical mile territorial sea or inland
waters before entering Cuban territorial
waters. This rule does not apply to
warships, foreign vessels, other public
vessels operated for non-commercial
purposes, or U.S. vessels entering Cuban
territorial waters under force majeure. If
necessary, pursuant to the authority in
Proclamation 7757, the Coast Guard in
the future may issue rules or regulations
that apply to other vessels subject to the
jurisdiction of the United States.
Vessels and persons to which the rule
applies cannot move within or depart
U.S. territorial waters and thereafter
enter Cuban territorial waters without a
Coast Guard permit. If issued, the
permit must be kept on board the vessel.
The Coast Guard may issue appropriate
orders to control the movement and
anchorage of all vessels covered by the
rule. Additionally, the Coast Guard may
remove all persons not specifically
authorized by the Coast Guard to go or
remain on board covered vessels, may
place guards on covered vessels, and
may take full or partial possession or
control of any such vessel or part

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

41369

thereof. Such actions to be taken are in
the discretion of the Coast Guard as
deemed necessary to ensure compliance
with the provisions of the rule or any
other order issued under the authority
of the rule. Nothing in this rule
precludes the Coast Guard, or any other
agency, from taking action pursuant to
any other applicable authority.
Even if a covered vessel has not
applied for a permit, where there is an
articulable basis to believe that the
vessel intends to enter Cuban territorial
waters, as a condition of moving in or
departing from U.S. territorial waters,
the Coast Guard has the discretion to
require the owner, agent, master, officer,
or person in charge, or any member of
the crew of any covered vessel to
provide verbal assurance to the Coast
Guard that the vessel will not enter
Cuban territorial waters. Likewise, the
Coast Guard may require the owners,
agents, masters, officers, or persons in
charge of covered vessels to identify all
persons on board the vessel and provide
verbal assurances that all persons on
board have received actual notice of
these regulations. The failure of an
owner, agent, master, officer, or person
in charge, or any member of the crew of
any vessel (including all auxiliary
vessels) to provide requested verbal
assurances shall not be used as the sole
basis for seizing the vessel for forfeiture
under this rule. Additionally, where
there is an articulable basis to believe
that a covered vessel located in U.S.
territorial waters intends to enter Cuban
territorial waters, the Coast Guard may
require that the vessel apply for a permit
as a condition of departure.
Applicants may apply to the Chief of
Operations, Seventh Coast Guard
District in Miami, FL, for a permit.
Applicants may mail or fax the required
information and documentation for a
permit to the Chief of Operations,
Seventh Coast Guard District in Miami,
FL. The Commander, Seventh Coast
Guard District, may make available to
the public documents and other
information that may aid the public in
the application process. There is no
required form.
Even if an applicant provides all of
the information and documentation
required by this rule in the permit
application, the Coast Guard
nevertheless will consider any available
information that reasonably supports a
conclusion that entry by the vessel or
persons on board into Cuban territorial
waters might: Subject the vessel or
persons on board to the use of excessive
or deadly force by the Government of
Cuba; result in unauthorized
transactions; or threaten a disturbance
of the international relations of the

E:\FR\FM\08JYR4.SGM

08JYR4

41370

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations

United States. In such a case, the Coast
Guard intends to consult with other
appropriate agencies prior to taking
final agency action.
Applicants denied permits may
request the Seventh Coast Guard District
Commander to reconsider that decision.
The Seventh District Commander’s
decision on a request for
reconsideration will constitute final
agency action.
Covered vessels and persons will be
held to a standard of strict civil liability
for any entry into Cuban territorial
waters without a permit, or for failure to
maintain the permit on board the vessel.
Noncompliance with the permit
application and permit carriage
provisions may result in a civil penalty
of not more than $25,000 for each day
of violation. The Coast Guard will not
impose strict liability if the failure to
obtain or carry a permit results
primarily from an act of war, force
majeure, or the negligence of the United
States.
Although the applicable statute (50
U.S.C. 192) provides for strict criminal
liability for non-compliant owners,
agents, masters, officers, persons in
charge and members of the crew, the
Coast Guard has chosen not to include
such criminal penalties for violation of
the rule without the addition of scienter.
Accordingly, any person who
knowingly fails to comply with any
requirements of, or order issued
pursuant to, this rule, or knowingly
obstructs or interferes with the exercise
of any power conferred by this rule may
be subject to criminal penalties of
imprisonment of not more than 10
years, a penalty of not more than
$10,000, seizure and forfeiture of the
vessel, and a civil penalty of not more
than $25,000 for each day of violation.
Making false statements or writings may
subject the actor to imprisonment for
not more than five years or a fine, or
both, pursuant to 18 U.S.C. 1001.
The civil and criminal penalties
provided for in this rule are separate
from and in addition to any enforcement
action that any other agency may seek
for violations of the statutes and
regulations administered by such
agencies.
Regulatory Evaluation
This rule is a ‘‘significant regulatory
action’’ under section 3(f)(4) of
Executive Order 12866, Regulatory
Planning and Review. The Office of
Management and Budget has reviewed it
under that Order. This rule implements
Presidential Proclamation 7757, which
expanded the scope of the national
emergency and authority to regulate the

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

anchorage and movement of vessels into
Cuban territorial waters.
Based on the limited number of
boarding events within the last year in
the geographic area most affected by this
rule, we expect the economic impact of
this rule to be minimal. In that
geographic area, the Coast Guard boards
on average 807 vessels each year that
would be affected by this rule. The vast
majority of these vessels have permits to
be in Cuban waters. On average, each
boarding takes 90 minutes for officers to
check for permits and other documents.
The Coast Guard estimates the total
annual cost to vessel owners from these
boarding operations to be $66,577.
This rule is ‘‘significant’’ under the
regulatory policies and procedures of
the Department of Homeland Security.
The requirements of this rule, although
applicable nation-wide, are necessary to
protect the safety of lives and property
at sea, improve enforcement of the
economic sanctions against Cuba, and to
prevent threatened disturbance of the
international relations of the United
States. The requirements in this rule for
persons or vessels are necessary to the
national interest as described above and
to prevent threatened disturbance of the
international relations of the United
States. This rule will be enforced so
long as the national emergency and
regulatory authority established in
Proclamation 6867, and expanded in
scope by Proclamation 7757, continues.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), 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. This
rule does not require a general notice of
proposed rulemaking and, therefore, is
exempt from the requirements of the
Regulatory Flexibility Act.
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
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 Lieutenant
Commander Brad Kieserman, Office of
Law Enforcement (G–OPL), U.S. Coast
Guard Headquarters, listed under FOR

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

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
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).

FURTHER INFORMATION CONTACT

Collection of Information
This rule calls for a new collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520). As defined in 5 CFR 1320.3(c),
‘‘collection of information’’ comprises
reporting, recordkeeping, monitoring,
posting, labeling, and other, similar
actions. The title and description of the
information collection, a description of
those who must collect the information,
and an estimate of the total annual
burden follow. The estimate covers the
time for reviewing instructions,
searching existing sources of data,
gathering and maintaining the data
needed, and completing and reviewing
the collection.
Title: Unauthorized entry into Cuban
territorial waters.
OMB Control Number: 1625–0106.
Summary of the Collection of
Information: The Coast Guard requires
applicant identifying information,
vessel registry, and federal export and
transaction license information from
applicants and U.S. vessels that apply
for permits to enter Cuban territorial
waters. This rule will amend 33 CFR
subchapter H to require:
Applicants must report the following
information via facsimile or mail, or by
other means prescribed by the District
Commander for the convenience of the
applicant:
a. The name, address, and telephone
number of the applicant.
b. A copy of the valid vessel
registration.
c. A copy of a valid and applicable
export license issued to the applicant by
the U.S. Department of Commerce,
Bureau of Industry and Security,
pursuant to the Export Administration
Regulations, 15 CFR chapter VII,
subchapter C, parts 730–774 for the
export of the vessel to Cuba.
d. A copy of a valid and applicable
specific license issued by the U.S.
Department of the Treasury, Office of
Foreign Assets Control (OFAC),
pursuant to the Cuban Assets Control

E:\FR\FM\08JYR4.SGM

08JYR4

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations
Regulations, 31 CFR part 515,
authorizing the applicant’s travelrelated transactions in Cuba. Applicants
who do not require such an OFAC
specific license shall make a written
certification to that effect identifying
which OFAC general license applies or
explaining why no OFAC license is
required.
e. Applications must provide the
documentation required above for each
person to which this rule applies on
board the particular vessel.
The changes will be in effect through
January 31, 2005.
Need for Information: To provide for
the safety of United States citizens and
residents, and their property, improve
enforcement of the economic sanctions
against Cuba, and to prevent threatened
disturbances of the international
relations of the United States.
Proposed use of Information: This
information is required to enhance
maritime security, control vessel
anchorages and movement, and enforce
regulations.
Description of the Respondents: The
respondents are owners, agents, masters,
officers, persons in charge or other
applicants associated with U.S. vessels,
and vessels without nationality, less
than 100 meters (328 feet) in length that
may enter Cuban territorial waters.
Number of Respondents: The existing
OMB-approved collection number of
respondents is zero (0). This rule will
increase the number of respondents by
532 to a total of 532.
Frequency of Response: The existing
OMB-approved collection annual
number of responses is zero (0). This
rule will increase the number of
responses by 532 to a total of 532.
Burden of Response: The existing
OMB-approved collection burden of
response is zero (0). This rule will
increase the burden of response by 15
minutes (0.25 hours) to a total of 15
minutes (0.25 hours).
Estimate of Total Annual Burden: The
existing OMB-approved collection total
annual burden is zero (0). This rule will
increase the total annual burden by 133
hours to a total of 133 hours.
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)), we submitted a copy of this
rule to the Office of Management and
Budget (OMB) for its review of the
collection of information. Due to the
circumstances surrounding this rule, we
asked for ‘‘emergency processing’’ of our
request. We received OMB approval for
the collection of information on July 2,
2004. It is valid through January 31,
2005.
We ask for public comment on the
collection of information to help us

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

determine how useful the information
is; whether it can help us perform our
functions better; whether it is readily
available elsewhere; how accurate our
estimate of the burden of collection is;
how valid our methods for determining
burden are; how we can improve the
quality, usefulness, and clarity of the
information; and how we can minimize
the burden of collection.
If you submit comments on the
collection of information, submit them
both to OMB and to the Docket
Management Facility where indicated
under ADDRESSES, by August 9, 2004.
You need not respond to a collection
of information unless it displays a
currently valid control number from
OMB. We received OMB approval for
the collection of information on July 2,
2004. It is valid through January 31,
2005.
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

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

41371

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.
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, paragraphs (34)(a), (d) and
(g) of the Instruction, from further
environmental documentation. This rule
establishes procedures for U.S. vessels
to receive permission to depart U.S
waters and enter Cuban waters and
concerns the documentation and
inspection of such vessels.
A final ‘‘Environmental Analysis
Check List’’ and a final ‘‘Categorical
Exclusion Determination’’ are available
in the docket where indicated under
ADDRESSES.
List of Subjects
33 CFR Part 107
Harbors, Facilities, Marine safety,
Maritime security, Navigation (water),
Reporting and recordkeeping

E:\FR\FM\08JYR4.SGM

08JYR4

41372

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations

requirements, Security measures,
Vessels, Waterways.
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 adds part 107
to subchapter H of chapter I, title 33 of
the Code of Federal Regulations, and
amends 33 CFR part 165 as follows:
■ 1. Add part 107 to subchapter H of
chapter I, title 33 of the Code of Federal
Regulations to read as follows:
PART 107—NATIONAL VESSEL AND
FACILITY CONTROL MEASURES AND
LIMITED ACCESS AREAS
Subpart A—[Reserved]
Subpart B—Unauthorized Entry Into
Cuban Territorial Waters
Sec.
107.200
107.205
107.210
107.215
107.220
107.225
107.230
107.240

Definitions.
Purpose and delegation.
Applicability.
Regulations.
Permits.
Appeals.
Enforcement.
Continuation.

Authority: 50 U.S.C. 191, 192, 194, 195; 14
U.S.C. 141; Presidential Proclamation 6867,
61 FR 8843, 3 CFR, 1996 Comp., p. 8;
Presidential Proclamation 7757, 69 FR 9515
(March 1, 2004); Secretary of Homeland
Security Order 2004–001; Department of
Homeland Security Delegation No. 0170.1;
and 33 CFR 1.05–1.

Subpart A—[Reserved]
Subpart B—Unauthorized Entry Into
Cuban Territorial Waters
§ 107.200

Definitions.

Unless otherwise specified, as used in
this subpart:
Auxiliary vessel includes every
description of watercraft or other
artificial contrivance used, or capable of
being used, as a means of transportation
on water attached to, or embarked in,
another vessel to which this subpart
applies.
Cuban territorial waters means the
territorial sea and internal waters of
Cuba determined in accordance with
international law.
Owner, agent, master, officer, or
person in charge means the persons or
entities that maintain operational
control over any vessel subject to the
requirements of this subpart.
U.S. territorial waters has the same
meaning as provided in 50 U.S.C. 195.

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

Vessel includes every description of
watercraft or other artificial contrivance
used, or capable of being used, as a
means of transportation on water,
including auxiliary vessels.
Vessel of the United States means—
(1) a vessel documented under
chapter 121 of title 46 or a vessel
numbered as provided in chapter 123 of
that title;
(2) a vessel owned in whole or part
by—
(i) the United States or a territory,
commonwealth, or possession of the
United States;
(ii) a State or political subdivision
thereof;
(iii) a citizen or national of the United
States; or
(iv) a corporation, partnership,
association, trust, joint venture, limited
liability company, limited liability
partnership, or any other legal entity,
created and authorized to own vessels
under the laws of the United States or
any State, the District of Columbia, or
any territory, commonwealth, or
possession of the United States; unless
the vessel has been granted the
nationality of a foreign nation in
accordance with article 5 of the 1958
Convention on the High Seas and a
claim of nationality or registry for the
vessel is made by the master or
individual in charge at the time of the
enforcement action by an officer or
employee of the United States
authorized to enforce applicable
provisions of United States law;
(3) a vessel that was once documented
under the laws of the United States and,
in violation of the laws of the United
States, was either sold to a person not
a citizen of the United States or placed
under foreign registry or a foreign flag,
whether or not the vessel has been
granted the nationality of a foreign
nation;
(4) A vessel without nationality as
defined in 46 U.S.C. Appendix
1903(c)(2)–(3); or
(5) a vessel assimilated to a vessel
without nationality, in accordance with
paragraph (2) of article 6 of the 1958
Convention on the High Seas.
§ 107.205

Purpose and delegation.

The purpose of this subpart is to
implement Presidential Proclamation
7757, and Secretary of Homeland
Security Order 2004–001. All powers
and authorities granted to officers of the
Coast Guard by this subpart may be
delegated to other officers and agents of
the Coast Guard unless otherwise
prohibited by law.
§ 107.210

PO 00000

Applicability.

(a) This subpart applies to:

Frm 00006

Fmt 4701

Sfmt 4700

(1) Vessels of the United States less
than 100 meters (328 feet) in length (and
all associated auxiliary vessels) and the
owners, agents, masters, officers,
persons in charge, and members of the
crew of such vessels, that depart U.S.
territorial waters and thereafter enter
Cuban territorial waters, regardless of
whether such entry is made after an
intervening entry into, passage through,
or departure from any other foreign
territory or territorial waters;
(2) Vessels of the United States less
than 100 meters (328 feet) in length (and
all associated auxiliary vessels) and the
owners, agents, masters, officers,
persons in charge, and members of the
crew of such vessels that are located at
or get underway from a berth, pier,
mooring, or anchorage in U.S. territorial
waters, or depart U.S. territorial waters
with the intent to enter Cuban territorial
waters; and
(3) Any person who knowingly fails to
comply with this subpart or order given
under this subpart, or knowingly
obstructs or interferes with the exercise
of any power conferred by this subpart.
(b) This subpart does not apply to:
Foreign vessels, as defined by 46 U.S.C.
2101(12), public vessels, as defined by
46 U.S.C. 2101(24) operated for noncommercial purposes, or vessels of the
United States entering Cuban territorial
waters under force majeure.
§ 107.215

Regulations.

(a) Each person or vessel to which this
subpart applies may not get underway
or depart from U.S. territorial waters
without a written permit from the
Commander, Seventh Coast Guard
District, or the District Commander’s
designee. Permits may be obtained
pursuant to the process established in
§ 107.220. The owner, agent, master, or
person in charge of the vessel must
maintain the written permit for the
vessel on board the vessel.
(b) Each person or vessel to which
this subpart applies must obey any oral
or written order issued by a Coast Guard
Area or District Commander, or their
designees, who may issue oral or
written orders to control the anchorage
or movement of such vessels and
persons. Designees include Captains of
the Port, and commissioned, warrant
and petty officers of the Coast Guard.
(c) No person or vessel to which this
subpart applies may obstruct or interfere
with the exercise of any power
conferred by this subpart.
(d) Coast Guard commissioned,
warrant and petty officers may go or
remain on board a vessel subject to this
subpart, may place guards on the subject
vessel, may remove all persons not
specifically authorized by the Coast

E:\FR\FM\08JYR4.SGM

08JYR4

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations
Guard to go or remain on board the
subject vessel, and may take full or
partial possession or control of any such
vessel or part thereof, or person on
board. Such actions to be taken are in
the discretion of the Coast Guard Area
or District Commander, or their
designees, as deemed necessary to
ensure compliance with this subpart
and any order given pursuant thereto.
(e) Where there is a reasonable,
articulable basis to believe a vessel to
which this subpart applies intends to
enter Cuban territorial waters, any Coast
Guard commissioned, warrant, or petty
officer may require the owners, agents,
masters, officers, or persons in charge,
or any member of the crew of any such
vessel to provide verbal assurance that
the vessel will not enter Cuban
territorial waters as a condition for a
vessel to get underway from a berth,
pier, mooring, or anchorage in U.S.
territorial waters, or to depart from U.S.
territorial waters. A Coast Guard
commissioned, warrant, or petty officer
may require the owners, agents, masters,
officers, or persons in charge of the
vessel to identify all persons on board
the vessel and provide verbal assurances
that all persons on board have received
actual notice of these regulations. The
failure of an owner, agent, master,
officer, or person in charge, or any
member of the crew of any vessel
(including all auxiliary vessels) to
which this subpart applies to provide
requested verbal assurances shall not be
used as the sole basis for seizing the
vessel for forfeiture under this subpart.
(f) The provisions of this subpart are
in addition to any powers conferred by
law upon Coast Guard commissioned,
warrant, or petty officers, and not in
limitation of any powers conferred by
law or regulation upon such officers, or
any other officers of the United States.

be provided with the application in
order for it to be complete and
considered by the Coast Guard:
(1) The name, address, and telephone
number of the applicant;
(2) A copy of the valid vessel
registration;
(3) A copy of a valid and applicable
license issued to the applicant by the
U.S. Department of Commerce, Bureau
of Industry and Security, pursuant to
the Export Administration Regulations,
15 CFR chapter VII, subchapter C, parts
730–774 for the export of the vessel to
Cuba; and
(4) A copy of a valid and applicable
specific license issued by the U.S.
Department of the Treasury, Office of
Foreign Assets Control (OFAC),
pursuant to the Cuban Assets Control
Regulations, 31 CFR part 515,
authorizing the applicant’s travelrelated transactions in Cuba. Applicants
who do not require such an OFAC
specific license shall make a written
certification to that effect identifying
which OFAC general license applies or
explaining why no OFAC license is
required.
(d) Such applications must provide
the documentation required by
§ 107.220(c) for each person to which
this subpart applies on board the
particular vessel.
(e) Upon receiving an application for
a permit, the Seventh Coast Guard
District Commander (o) has ten (10)
calendar days from the receipt of the
application to decide whether the
application is complete and, if so,
whether a permit will be issued or
denied. Applicants will be notified in
writing of the decision to issue or deny
a permit. Incomplete applications will
be returned to the applicant, along with
the reasons why such application was
deemed incomplete.

§ 107.220

§ 107.225

Permits.

(a) Applications for a permit may be
obtained by writing or calling the Chief
of Operations at Commander, Seventh
Coast Guard District (o), 909 SE First
Avenue, Miami, FL 33131, telephone
(305) 415–6920, or by such other means
as the District Commander may make
available to the public. The completed
application may be returned via regular
mail or facsimile to the Chief of
Operations at Commander, Seventh
Coast Guard District (o), 909 SE First
Avenue, Miami, FL 33131, facsimile
(305) 415–6925, or by other means
prescribed by the District Commander
for the convenience of the applicant.
(b) All applications must be written in
English and legible.
(c) The information and
documentation in this paragraph must

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

Appeals.

(a) Upon written notification by the
Coast Guard that an application has
been denied, the applicant may request
the Seventh Coast Guard District
Commander to reconsider. The request
to reconsider must be in writing, must
be made within five (5) business days
from the date of receipt of the initial
denial, and must contain complete
supporting documentation and evidence
which the applicant wishes to have
considered. Requests for reconsideration
must be mailed to Commander, Seventh
Coast Guard District (d), 909 SE First
Avenue, Miami, FL 33131.
(b) Upon receipt of the request to
reconsider, the Seventh Coast Guard
District Commander may direct a
representative to gather and submit
documentation or other evidence,

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

41373

which, in the judgment of the Seventh
District Commander, would be
necessary or helpful to a resolution of
the request. If gathered and submitted,
a copy of this documentation and
evidence shall be made available to the
applicant. The applicant shall be
afforded five (5) business days from the
date of receipt of documentation and
evidence gathered by the Seventh Coast
Guard District Commander’s
representative to submit rebuttal
materials. On or before the fifteenth
(15th) calendar day following
submission of all materials, the Seventh
Coast Guard District Commander shall
issue a ruling, in writing, on the request
to reconsider. The ruling may reverse
the initial denial, or, if the denial is
upheld, must contain the specific basis
for denial of the application upon
reconsideration.
(c) The Seventh Coast Guard District
Commander’s denial of a request for
reconsideration taken under paragraph
(b) of this section constitutes final
agency action.
§ 107.230

Enforcement.

(a) Unauthorized departure or entry,
or both.
(1) Vessels and persons to whom this
subpart applies, as described in
§ 107.210(a)(1), that do not comply with
§ 107.215(a), or any order issued
pursuant to this subpart may be subject
to a civil penalty of not more than
$25,000 for each day of violation.
(2) Vessels and persons to whom
§ 107.230(a)(1) applies shall be held to
a standard of strict liability for any entry
into Cuban territorial waters without a
permit or for failure to maintain the
permit for the vessel on board the vessel
as required under this subpart, except
that strict liability will not be imposed
if the failure to obtain or carry a permit
results primarily from an act of war,
force majeure, or the negligence of the
United States.
(b) Knowing failure to comply. Any
person to whom this subpart applies as
described in §§ 107.210(a)(2) or (a)(3)
who knowingly fails to comply with this
subpart or order given under this
subpart, or knowingly obstructs or
interferes with the exercise of any
power conferred by this subpart may be
subject to:
(1) Imprisonment for not more than 10
years;
(2) A monetary penalty of not more
than $10,000;
(3) Seizure and forfeiture of the
vessel; and
(4) A civil penalty of not more than
$25,000 for each day of violation.
(c) False Statements. Violation of 18
U.S.C. 1001 may result in imprisonment

E:\FR\FM\08JYR4.SGM

08JYR4

41374

Federal Register / Vol. 69, No. 130 / Thursday, July 8, 2004 / Rules and Regulations

for not more than five years or a fine,
or both.
(d) Other enforcement. The civil
penalties provided for in this subpart
are separate from and in addition to any
enforcement action that any other
agency may seek for violations of the
statutes and regulations administered by
such agencies.

emergency with respect to Cuba, and the
emergency authority relating to the
regulation of the anchorage and
movement of vessels declared in
Proclamation 6867, and expanded in
scope by Proclamation 7757, continues.

§ 107.240

■

Continuation.

This subpart will continue to be
enforced so long as the national

VerDate jul<14>2003

19:46 Jul 07, 2004

Jkt 203001

PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
2. 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.
§ 165.T07–013
■

[Removed].

3. Remove § 165.T07–013.

Dated: July 2, 2004.
Thomas H. Collins,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 04–15590 Filed 7–6–04; 1:25 pm]
BILLING CODE 4910–15–P

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

E:\FR\FM\08JYR4.SGM

08JYR4