[Federal Register: November 19, 2003 (Volume 68, Number 223)]
[Rules and Regulations]
[Page 65177-65179]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no03-16]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Diego 03-033]
RIN 1625-AA00
Security Zone: Pacific Ocean, San Diego, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a security zone off the coast
of Coronado and Imperial Beach in San Diego, California in support of
naval military operations for the purposes of national security. This
security zone is necessary to protect the vessels and crew involved in
these military operations. Persons and vessels are prohibited from
entering into, transiting through, loitering, or anchoring within this
security zone unless authorized by the Captain of the Port, or his
designated representative.
DATES: This rule is effective from 8 a.m. (p.s.t.) on November 10,
2003, until 11:59 p.m. (p.s.t.) on November 21, 2003.
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 [COTP San Diego 03-033] and are available for
inspection or copying at Marine Safety Office San Diego, 2716 North
Harbor Drive, San Diego, CA 92101-1064 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:
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. Any delay in implementing this
rule would be contrary to the public interest since immediate action is
necessary to protect the vessels and crew involved in this operation.
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.
Due to complex planning and national security reasons, information
regarding the precise location and date of the event necessitating
promulgation of this security zone and other logistical details
surrounding the event were not provided until a date fewer than 30 days
prior to the event. Due to the sensitive nature of the operations
involved, it was necessary for this information to be finalized at a
later date.
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
Iraq have made it prudent to 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 and to take steps to prevent the catastrophic impact
that a terrorist attack against naval vessels and personnel would have
on the public interest, the Coast Guard is establishing a security zone
off the coast of San Diego.
The security zone consists of the navigable waters of the Pacific
Ocean off San Diego, California in the areas known locally as Coronado
and Imperial Beach. The exact coordinates can be found in the
regulatory text.
This rule is effective from 8 a.m. (p.s.t.) on November 10, 2003,
until 11:59 p.m. (p.s.t.) on November 21, 2003.
Persons and vessels are prohibited from entering into, transiting
through, loitering, or anchoring within this security zone unless
authorized by the Captain of the Port, or his designated
representative.
Discussion of Rule
The United States Navy will be conducting military operations on
the navigable waters of the Pacific Ocean off the coast of San Diego,
California. Persons and vessels are prohibited from entering into this
security zone unless authorized by the Captain of the Port or his
designated representative. Each person and vessel in a security zone
shall obey any direction or order of the COTP. The COTP may remove any
person, vessel, article, or thing from a security zone. No person may
board, or take or place any article or thing on board, any vessel in a
security zone without the permission of the COTP.
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
[[Page 65178]]
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 Captain of the Port will enforce these zones 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).
Due to national security interests, the implementation of this
security zone is necessary for the security of the Navy and its vessels
and crews. The size of the zone is the minimum necessary to provide for
the security of the vessels involved in the military operations. 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 the Naval vessels. Accordingly, full regulatory
evaluation under 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 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. The security zone will not have a significant economic impact
on a substantial number of small entities for several reasons: small
vessel traffic can pass safely around the security zone and vessels
engaged in recreational activities, sightseeing and commercial fishing
have ample space outside of the security zones 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 (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 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 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 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.
[[Page 65179]]
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
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.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and 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. 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 new Sec. 165.T11-031 to read as follows:
Sec. 165.T11-031 Security Zone: Pacific Ocean, San Diego, CA.
(a) Location. The navigable waters encompassed by a line connecting
the following points: starting from a point on shore at 32[deg]38.88'
N, 117[deg]09.02' W, then west to point 32[deg]38.88' N, 117[deg]12.2'
W, then southwest to point 32[deg]36.70' N, 117[deg]13.83' W, then
south to point 32[deg]32.88' N, 117[deg]13.83' W, then east along
latitude 32[deg]32.88' N to shoreline.
(b) Enforcement period. This section will be enforced from 8 a.m.
(P.s.t.) on November 10, 2003, until 11:59 p.m. (P.s.t.) on November
21, 2003. If the Coast Guard terminates enforcement of this security
zone prior to the scheduled termination time, the Captain of the Port
will cease enforcement of this safety zone and will announce that fact
via Broadcast Notice to Mariners.
(c) Regulations. In accordance with the general regulations in
Sec. 165.33 of this part, entry into, transit through, loitering, or
anchoring within this security zone by all persons and vessels is
prohibited, unless authorized by the Captain of the Port, or his
designated representative. Mariners are advised that the security zone
will not restrict the main navigational channel and transit through the
channel is not prohibited. Mariners requesting permission to transit
through the security zone may request authorization to do so from
Captain of the Port or his designated representative. The Coast Guard
can be contacted via VHF-FM channel 16.
Dated: November 7, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 03-28810 Filed 11-18-03; 8:45 am]
BILLING CODE 4910-15-P