[Federal Register: June 3, 2004 (Volume 69, Number 107)]
[Rules and Regulations]
[Page 31294-31297]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03jn04-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 04-012]
RIN 1625-AA00
Security Zone; Suisun Bay, Concord, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary security zone in
the navigable waters of the United States adjacent to Pier Three at the
Military Ocean Terminal Concord (MOTCO), California (formerly United
States Naval Weapons Center Concord, California). In light of recent
terrorist actions against the United States, this security zone is
necessary to ensure the safe loading of military equipment and to
ensure the safety of the public from potential subversive acts. The
security zone will prohibit all persons and vessels from entering,
transiting through or anchoring within a portion of Suisun Bay within
500 yards of Pier Three at the MOTCO facility unless authorized by the
Captain of the Port (COTP) or his designated representative.
DATES: This rule is effective from 7 a.m. P.d.t. on May 28, 2004, to
11:59 p.m. P.d.t. on June 4, 2004.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket (COTP San Francisco Bay 04-012) 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: Ensign John Bannon, U.S. Coast Guard
Marine Safety Office San Francisco Bay, at (510) 437-3082.
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 a NPRM because the duration of the NPRM
rulemaking process would extend beyond the actual period of the
scheduled operations and defeat the protections afforded by the
temporary rule to the cargo vessels, their crews, the public and
national security.
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 as the schedule and other
logistical details were not known until a date fewer than 30 days prior
to the start date of the military operation. Delaying this rule's
effective date would be contrary to the public interest since the
safety and security of the people, ports, waterways, and properties of
the Port Chicago and Suisun Bay areas would be jeopardized without the
protection afforded by this security zone.
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.
The threat of maritime attacks is real as evidenced by the attack
on the USS Cole and the subsequent attack in
[[Page 31295]]
October 2002 against a tank vessel off the coast of Yemen. These
threats manifest a 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 aggression continues
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), and Continuation
of the National Emergency with Respect to Persons Who Commit, Threaten
To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). The
U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S.
shipping interests to maintain a heightened status of alert against
possible terrorist attacks. MARAD more recently issued Advisory 03-05
informing operators of maritime interests of increased threat
possibilities to vessels and facilities and a higher risk of terrorist
attack to the transportation community in the United States. The
ongoing foreign hostilities have made it prudent for U.S. ports and
waterways to be on a higher state of alert because the Al-Qaeda
organization and other similar 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
within 500 yards of Pier Three at the Military Ocean Terminal Concord
(MOTCO), California, to safeguard vessels, cargo and crew engaged in
military operations. This temporary security zone is necessary to
safeguard the MOTCO terminal and the surrounding property from sabotage
or other subversive acts, accidents or criminal acts. This zone is also
necessary to protect military operations from compromise and
interference and to specifically protect the people, ports, waterways,
and properties of the Port Chicago and Suisun Bay areas.
Discussion of Rule
In this temporary rule, the Coast Guard is establishing a fixed
security zone encompassing the navigable waters, extending from the
surface to the sea floor, within 500 yards of any portion of Pier Three
at Military Ocean Terminal Concord (MOTCO), California. There are three
existing piers at the MOTCO facility. Originally there were four piers,
numbered One through Four from west to east, but Pier One was destroyed
in an explosion in 1944. Therefore, Pier Three is the middle pier of
the three remaining piers. The area encompassed by this security zone
includes a portion of both the Port Chicago Reach and the Roe Island
Channel sections of the deepwater channel. Persons and vessels are
prohibited from entering, transiting through or anchoring within this
security zone unless authorized by the Captain of the Port (COTP) or
his designated representative.
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 $32,500 per violation,
where each day of a continuing violation is a separate violation),
criminal penalties (imprisonment up to 6 years and a maximum fine of
$250,000), and in rem liability against the offending vessel. Any
person who violates this section using a dangerous weapon, or who
engages in conduct that causes bodily injury or fear of imminent bodily
injury to any officer authorized to enforce this regulation, will also
face 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. If the
need for this security zone ends before the scheduled termination time,
the Captain of the Port will cease enforcement of the security zone and
will announce that fact via Broadcast Notice to Mariners.
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 a portion of navigable
waters, the effect of this regulation will not be significant because
mariners will be advised about the security zone via public notice to
mariners, and the zone will encompass only a small portion of the
waterway for a short duration. In addition, vessels and persons may be
allowed to enter this zone 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, 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. This rule will affect the following entities, some of which
may be small entities: the owners and operators of vessels intending to
anchor or transit to or from Suisun Bay via the Port Chicago Reach
section of the channel. Although the security zone will occupy a
section of the navigable channel (Port Chicago
[[Page 31296]]
Reach) adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels
may 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 will have ample space outside of the security
zone to engage in those 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.
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.
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'' will be available in the docket
where located under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping 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 Sec. 165.T11-017 to read as follows:
Sec. 165.T11-017 Security Zone; Navigable Waters of the United States
Surrounding Pier Three at 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, within 500 yards of any portion of Pier Three at
Military Ocean Terminal Concord (MOTCO), California.
(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 this security zone may
contact the Patrol Commander on scene on VHF-FM channel 13 or 16 or the
Captain of the Port at telephone number 415-399-3547 to seek permission
to transit the area. If permission is granted, all
[[Page 31297]]
persons and vessels must comply with the instructions of the Captain of
the Port or his designated representative.
(c) Effective period. This section becomes effective at 7 a.m.
p.d.t. on May 28, 2004, and terminates at 11:59 p.m. p.d.t on June 4,
2004. If the need for this security zone ends before the scheduled
termination time, the Captain of the Port will cease enforcement of the
security zone and will announce that fact via Broadcast Notice to
Mariners.
Dated: May 25, 2004.
Steven J. Boyle,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 04-12537 Filed 6-2-04; 8:45 am]
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