[Federal Register: May 7, 2003 (Volume 68, Number 88)]
[Proposed Rules]
[Page 24408-24410]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my03-28]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Diego 03-011]
RIN 1625-AA00
Security Zone; Waters Adjacent to National City Marine Terminal
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a permanent security
zone in the waters adjacent to the National City Marine Terminal in San
Diego Bay, San Diego, CA. This action is needed to protect the U.S.
Naval vessel(s) and their crew(s) during military outload evolutions at
the National City Marine Terminal from sabotage, or other subversive
acts, accidents, criminal actions or other causes of a similar nature.
Entry, transit, or anchoring in this zone is prohibited unless
authorized by the Captain of the Port (COTP) San Diego, or his
designated representative.
DATES: Comments and related material must reach the Coast Guard on or
before July 7, 2003.
ADDRESSES: You may mail comments and related material to Coast Guard
Marine Safety Office San Diego, 2716 North Harbor Drive, San Diego,
California, 92101. The Port Operations Department maintains the public
docket for this rulemaking. Comments and material received from the
public, as well as documents indicated in this preamble as being
available in the docket, will become part of this docket and will be
available for inspection or copying at Marine Safety Office San Diego,
Port Operations Department, 2716 North Harbor Drive, San Diego,
California, 92101, between 8 a.m. and 4 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Petty Officer Austin Murai, USCG, c/o
U.S Coast Guard Captain of the Port, telephone (619) 683-6495.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking, (COTP San
Diego 03-011), indicate the specific section of this document to which
each comment applies, and give the reason for each comment. Please
submit all comments and related material in an unbound format, no
larger than 8\1/2\ by 11 inches, suitable for copying. If you would
like to know they reached us, please enclose a stamped, self-addressed
postcard or envelope. We will consider all comments and material
received during the comment period. We may change this proposed rule in
view of them.
In our final rule, we will include a concise general statement of
the comments received and identify any changes from the proposed rule
based on the comments. If as we anticipate, we make the final rule
effective less than 30 days after publication in the Federal Register,
we will explain our good cause for doing so as required by 5 U.S.C.
553(d)(3).
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to Marine Safety Office San Diego at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid this rulemaking, we will hold one at a
time and place announced by a separate notice in the Federal Register.
Background and Purpose
The United States Navy conducts military outload operations from
the National City Marine Terminal. These operations involve the loading
of men and equipment onboard USNS ships and other Naval vessels for the
furtherance of our national security. These onload evolutions are often
short fused and are directed at a moments notice. In an effort to
protect the onload
[[Page 24409]]
evolutions and provide adequate notice to the public, the Captain of
the Port of San Diego proposes to establish a permanent security zone
around the National City Marine Terminal which will be enforced when
such a military onload evolution occurs.
As part of the Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399), Congress amended The Ports and Waterways Safety Act
(PWSA) to allow the Coast Guard to take actions, including the
establishment of security and safety zones, to prevent or respond to
acts of terrorism against individuals, vessels, or public or commercial
structures. 33 U.S.C. 1226. The terrorist acts against the United
States on September 11, 2001, have increased the need for safety and
security measures on U.S. ports and waterways.
In response to these terrorist acts, and in order to prevent
similar occurrences, the Coast Guard proposes to establish a permanent
security zone in the navigable waters of the United States adjacent to
the National City Marine Terminal. The action proposed under this rule
is necessary to protect the U.S. Naval vessel(s) and their crew(s)
during these military outload evolutions at the National City Marine
Terminal from sabotage, or other subversive acts, accidents, criminal
actions or other causes of a similar nature.
Discussion of Proposed Rule
Due to National Security interests, the implementation of this
security zone is necessary for the protection of the United States and
its people. The size of the zone is the minimum necessary to provide
adequate protection for the U.S. Naval vessel(s), their crew(s),
adjoining areas, and the public.
The military outload evolutions involve the transfer of military
equipment from a shore side staging area to various Military Sealift
Command vessels and other contracted vessels. The security zone will
accompany other security measures implemented at the National City
Marine Terminal waterfront facility.
Due to complex planning, national security reasons, and
coordination with all military schedules, information regarding the
precise location and date of the military outloads will not be
circulated, however, prior to any outload evolution, the public will be
notified that the security zone is in effect and will be enforced. The
enforcement of the security zone will be announced via broadcast notice
to mariners, local notice to mariners, or by any other means that is
deemed appropriate.
This security zone is established pursuant to the authority of the
Magnuson Act regulations promulgated by the President under 50 U.S.C.
191, including subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code
of Federal Regulations. Vessels or persons violating this section are
subject to he penalties set forth in 50 U.S.C. 192 which include
seizure and forfeiture of the vessel, a monetary penalty of not more
than $12,500, and imprisonment for not more than 10 years.
Regulatory Evaluation
This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order. It is not ``significant''
under the regulatory policies and procedures of the Department of
Homeland Security (DHS).
Although this regulation restricts access to the zone, the effect
of this regulation will not be significant because: (i) The zone will
encompass only a small portion of the waterway; (ii) vessels will be
able to pass safely around the zones; and (iii) vessels may be allowed
to enter these zones on a case-by-case basis with permission of the
Captain of the Port, or his designated representative.
Most of the entities likely to be affected are pleasure craft
engaged in recreational activities and sightseeing. Any hardships
experienced by persons or vessels are considered minimal compared to
the national interest in protecting U.S. Naval vessel(s), their
crew(s), and the public. Accordingly, full regulatory evaluation under
paragraph 10(e) of the regulatory policies and procedures of the DHS is
unnecessary.
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 rule will
not have a significant economic impact on a substantial number of small
entities. Most of the traffic in this area is recreational traffic and
sightseers. The economic impact is minimal by having them gain
permission to transit through the zone from the COTP or his
representative. The Coast Guard has coordinated with known private
business owners in an effort to reduce any substantial impact on
business.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offer to assist small
entities in understanding the rule so that they may better evaluate its
effects on them and participate in the rulemaking process. If your
small business or organization is affected by this rule or if you have
questions concerning its provisions or options for compliance, please
contact Lieutenant Commander Rick Sorrell, Chief of Port Operations,
U.S. Coast Guard Marine Office San Diego at (619) 683-6495.
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).
Collection of Information
This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.
[[Page 24410]]
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this proposed rule would not result in such
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. We
invite your comments on how this proposed rule might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the order.
Energy Effects
We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34)(g), of Commandant
Instruction M16475.lD, this rule is categorically excluded from further
environmental documentation because we are establishing a security
zone. A ``Categorical Exclusion Determination'' and checklist are
available in the docket for inspection or copying where indicated under
ADDRESSES. Comments on this section will be considered before we make
the final decision on whether the rule should be categorically excluded
from further environmental review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record-
keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; Department of Homeland Security
Delegation No. 0170.
2. Add Sec. 165.1109 to read as follows:
Sec. 165.1109 Security Zone; National City Marine Terminal, San
Diego, CA.
(a) Location. The security zone consists of the navigable waters
surrounding the National City Marine Terminal and encompassing
Sweetwater Channel. The limits of this security zone are more
specifically defined as the area enclosed by the following points:
starting on shore at 32[deg]39'25'' N 117[deg]07'15'' W, then extending
northerly to 32[deg]39'32'' N 117[deg]07'16'' W, then extending
westerly to 32[deg]39'29'' N 117[deg]07'36'' W, then southerly to
32[deg]39'05'' N 117[deg]07'34'' W, and then easterly to shore at
32[deg]39'06'' N 117[deg]07'14.5'' W. All coordinates are North
American Datum 1983.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into, transit through, or anchoring
within the security zone by all vessels is prohibited during military
outloads, unless authorized by the Captain of the Port, or his
designated representative. All other general regulations of Sec.
165.33 of this part apply in the security zone established by this
section.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port on VHF channel 16 or VHF channel 21A to
seek permission to transit the area. Additionally, the COTP
representative may be reached at (619) 683-6470 ext 2. If permission is
granted, all persons and vessels must comply with the instructions of
the Captain of the Port or his or her designated representatives.
(c) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of this security zone by the San Diego Harbor Police.
(d) Notice. Enforcement of the security zone will be announced via
broadcast notice to mariners, local notice to mariners, or by any other
means that is deemed appropriate.
(e) Authority. In addition to 33 U.S.C. 1231, the authority for
this section includes 33 U.S.C. 1226.
Dated: April 17, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego,
California.
[FR Doc. 03-11296 Filed 5-6-03; 8:45 am]
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