[Federal Register: June 4, 2003 (Volume 68, Number 107)]
[Rules and Regulations]
[Page 33382-33384]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn03-13]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-010]
RIN 1625-AA00
Security Zone; Suisun Bay, Concord, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary security zone in
the navigable waters of the United States adjacent to the Military
Ocean Terminal Concord (MOTCO), California (formerly United States
Naval Weapons Center Concord, California). The need for this security
zone is based on recent terrorist actions against the United States and
for national security reasons to protect the public and areas
surrounding MOTCO from potential terrorist attacks. The security zone
will prohibit all persons and vessels from entering, transiting through
or anchoring within a portion of the Suisun Bay surrounding MOTCO
unless authorized by the Captain of the Port (COTP), or his designated
representative.
DATES: This regulation is effective from 7 a.m. PDT on May 29, 2003 to
11:59 p.m. PDT on June 6, 2003.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket [COTP San Francisco Bay 03-010] and are
available for inspection or copying at Coast Guard 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 Doug Ebbers, U.S. Coast
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. This action was taken at the
request of the United States Army and is a joint military operation
with the U.S. Army, U.S. Navy and U.S. Coast Guard. This temporary
security zone is necessary to safeguard the MOTCO terminal and the
surrounding property from sabotage or other subversive acts, accidents,
criminal actions, or other causes of similar nature. This zone is also
necessary to protect military operations from compromise and
interference. Additionally, the threat of maritime attacks is real as
evidenced by the October 2002 attack of a tank vessel off the coast of
Yemen and the continuing threat to U.S. assets as described in the
President's finding in Executive Order 13273 of August 21, 2002 (67 FR
56215, September 3, 2002) that the security of the U.S. is endangered
by the September 11, 2001 attacks and that such disturbances continue
to endanger the international relations of the United States. See also
Continuation of the National Emergency with Respect to Certain
Terrorist Attacks (67 FR 58317, September 13, 2002); Continuation of
the National Emergency With Respect To Persons Who Commit, Threaten To
Commit, Or Support Terrorism (67 FR 59447, September 20, 2002).
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag
and Effective U.S. controlled Vessels and other Maritime Interests,
detailing the current threat of attack, MARAD 02-07 (October 10, 2002).
As a result, this security zone is needed for national security reasons
to protect the United States and more specifically the people, ports,
waterways, and properties of the Port Chicago and Suisun Bay areas. Any
delay in implementing this rule would be contrary to the public
interest since immediate action is necessary to ensure the protection
of all cargo vessels, their crews, the public and national security.
Furthermore, in order to protect the interests of national
security, the Coast Guard is promulgating this temporary regulation to
provide for the safety and security of operations in the navigable
waters of the United States. As a result, the establishment and
enforcement of this security zone is a function directly involved in,
and necessary to military operations. Also, under 5 U.S.C. 553(d)(3),
the Coast Guard finds that good cause exists for making this rule
effective less than 30 days after publication in the Federal Register
for the same reasons outlined above.
Background and Purpose
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. In addition, the ongoing hostilities in Afghanistan and
the conflict in Iraq have made it prudent for U.S. ports to be on a
higher state of alert because Al-Qaeda and other organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide.
In its effort to thwart terrorist activity, the Coast Guard has
increased safety and security measures on U.S. ports and waterways. As
part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L.
99-399), Congress amended section 7 of the Ports and Waterways Safety
Act (PWSA), 33 U.S.C. 1226, 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. The Coast Guard also has authority to establish
security zones pursuant to the Act of June 15, 1917, as amended by the
Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing
regulations promulgated by the President in subparts 6.01 and 6.04 of
part 6 of title 33 of the Code of Federal Regulations.
In this particular rulemaking, to address the aforementioned
security concerns, United States Army officials have requested that the
Captain of the Port, San Francisco Bay, California establish a
temporary security zone in the navigable waters of the United States
surrounding the Military Ocean Terminal Concord (MOTCO), California, to
safeguard vessels, cargo and crew engaged in military operations.
[[Page 33383]]
Discussion of Rule
In this temporary rule, the Coast Guard is establishing a fixed
security zone around Military Ocean Terminal Concord (MOTCO),
California, encompassing the navigable waters, extending from the
surface to the sea floor, bounded by the following coordinates:
latitude 38[deg]03'07''N and longitude 122[deg]03'00''W; thence to
latitude 38[deg]03'15''N and longitude 122[deg]03'04''W; thence to
latitude 38[deg]03'30''N and longitude 122[deg]02'35''W; thence to
latitude 38[deg]03'50''N and longitude 122[deg]01'15''W; thence to
latitude 38[deg]03'43''N and longitude 122[deg]00'28''W; thence to
latitude 38[deg]03'41''N and longitude 122[deg]00'03''W; thence to
latitude 38[deg]03'18''N and longitude 121[deg]59'31''W, and along the
shoreline back to the beginning point.
Vessels or persons violating this section will be 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 $27,500 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, and a civil penalty
of not more than $25,000 for each day of a continuing violation.
The Captain of the Port will enforce this zone and may enlist the
aid and cooperation of any Federal, State, county, municipal, and
private agency to assist in the enforcement of the regulation. This
regulation is proposed under the authority of 33 U.S.C. 1226 in
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C.
1231.
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).
Although this regulation restricts access to the zone, the effect
of this regulation will not be significant because the zone will
encompass only a small portion of the waterway for a short duration.
Vessels and persons 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.
The size of the zone is the minimum necessary to provide adequate
protection for MOTCO, vessels engaged in operations at MOTCO, their
crews, other vessels operating in the vicinity, their crews and
passengers, adjoining areas, and the public. The entities most likely
to be affected are commercial vessels transiting to or from Suisun Bay
via the Port Chicago Reach section of the channel.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities because, although the security zone will occupy a section of
the navigable channel (Port Chicago Reach) adjacent to the Marine Ocean
Terminal Concord (MOTCO), vessels will receive authorization to transit
through the zone by the Captain of the Port or his designated
representative on a case-by-case basis. Additionally, vessels engaged
in recreational activities, sightseeing and commercial fishing have
ample space outside of the security zone to engage in these activities.
Small entities and the maritime public will be advised of this security
zone via public notice to mariners.
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 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 the person listed under FOR
FURTHER INFORMATION CONTACT 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).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not 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.
[[Page 33384]]
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. 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 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 we are establishing a security zone.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where located under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports and record
keeping requirements, Security measures, Waterways.
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. 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.
0
2. Add Sec. 165.T11-084 to read as follows:
Sec. 165.T11-084 Security Zone; Navigable Waters of the United States
Surrounding Military Ocean Terminal Concord (MOTCO), Concord,
California.
(a) Location. The security zone, which will be marked by lighted
buoys, will encompass the navigable waters, extending from the surface
to the sea floor, surrounding the Military Ocean Terminal Concord,
Concord, California, bounded by the following coordinates: latitude
38[deg]03'07''N and longitude 122[deg]03'00''W; thence to latitude
38[deg]03'15''N and longitude 122[deg]03'04''W; thence to latitude
38[deg]03'30''N and longitude 122[deg]02'35''W; thence to latitude
38[deg]03'50''N and longitude 122[deg]01'15''W; thence to latitude
38[deg]03'43''N and longitude 122[deg]00'28''W; thence to latitude
38[deg]03'41''N and longitude 122[deg]00'03''W; thence to latitude
38[deg]03'18''N and longitude 121[deg]59'31''W, and along the shoreline
back to the beginning point.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entering, transiting through or anchoring in
this zone is prohibited unless authorized by the Coast Guard Captain of
the Port, San Francisco Bay, or his designated representative.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port at telephone number 510-437-3073 or on
VHF-FM channel 16 (156.8 MHz) to seek permission to transit the area.
If permission is granted, all persons and vessels must comply with the
instructions of the Captain of the Port or his or her designated
representative.
(c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the
authority for this section includes 33 U.S.C. 1226.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the security zone by local law enforcement and the
MOTCO police as necessary.
(e) Effective Dates. This section becomes effective at 7 a.m. PDT
on May 29, 2003, and will terminate at 11:59 p.m. PDT on June 6, 2003.
Dated: May 27, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 03-14015 Filed 6-3-03; 8:45 am]
BILLING CODE 4910-15-P