[Federal Register: June 7, 2004 (Volume 69, Number 109)]
[Rules and Regulations]
[Page 31737-31739]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn04-9]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-026]
RIN 1625-AA00
Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a security zone extending
approximately 150 feet into the navigable waters of the Oakland
Estuary, Alameda, California, surrounding the United States Coast Guard
Island Pier. This action is necessary to provide for the security of
the military service members on board vessels moored at the pier and
the government property associated with these valuable national assets.
This security zone prohibits all persons and vessels from entering,
transiting through or, anchoring within a portion of the Oakland
Estuary surrounding the Coast Guard Island Pier unless authorized by
the Captain of the Port (COTP) or his designated representative.
DATES: This rule is effective July 7, 2004.
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 03-026 and are available for inspection or
copying at the Waterways Branch of the 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
On January 29, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; San Francisco Bay, Oakland Estuary,
Alameda, CA'' in the Federal Register (69 FR 4267) proposing to
establish a permanent security zone extending approximately 150 feet
into the navigable waters of the Oakland Estuary surrounding the United
States Coast Guard Island Pier. We received one letter commenting on
the proposed rule. No public hearing was requested, and none was held.
Penalties for Violating Security Zone
Vessels or persons violating this security zone 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, 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 this zone and may enlist the
aid and cooperation of any Federal, State, county, municipal, or
private agency to assist in the enforcement of the regulation.
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 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 and to take steps to prevent a terrorist attack
against a Coast Guard Cutter, the Coast Guard is establishing a
permanent, fixed security zone around and under the United States Coast
Guard Island Pier that encompasses all
[[Page 31738]]
waters of the Oakland Estuary, extending from the surface to the sea
floor, within approximately 150 feet of the pier. The perimeter of the
security zone commences at a point on land approximately 150 feet north
of the northern end of the Coast Guard Island Pier at latitude
37[deg]46'53.6'' N and longitude 122[deg]15'06.1'' W; thence out to the
edge of the charted channel at latitude 37[deg]46'52.3'' N and
longitude 122[deg]15'07.9'' W; thence along the edge of the charted
channel to latitude 37[deg]46'42.2'' N and longitude
122[deg]14'50.5''W; thence to a point on land approximately 150 feet
south of the southern end of the Coast Guard Island Pier at latitude
37[deg]46'44.8'' N and longitude 122[deg]4'48.8'' W; thence along the
shoreline back to the beginning point, latitude 37[deg]46'53.6'' N and
longitude 122[deg]15'06.1'' W.
This security zone is needed for national security reasons to
protect Coast Guard Cutters, their crews, the public, transiting
vessels, and adjacent waterfront facilities from potential subversive
acts, accidents or other events of a similar nature. This security zone
will help the Coast Guard to prevent vessels or persons from engaging
in terrorist actions against Coast Guard Cutters that moor at the Coast
Guard Island Pier by providing a surveillance and detection perimeter,
and a margin of response time for security personnel. This rule, for
security reasons, would prohibit entry of any vessel or person inside
the security zone without specific authorization from the Captain of
the Port or his designated representative. Due to heightened security
concerns and the catastrophic impact a terrorist attack on a Coast
Guard Cutter would have on the crew on board and surrounding government
property, a security zone is prudent for this location.
Discussion of Comments and Changes
No public hearing was requested, and none was held. We received one
comment on the proposed rule, which pointed out that two of the four
geographical positions used in the NPRM to indicate the corner points
of the 150-foot security zone around the Coast Guard Island Pier were
incorrect. As a result, we have corrected the geographical positions to
accurately reflect the 150-foot security zone in this final rule. This
change is not considered significant since the general description of
the security zone was correct in the NPRM and has not been changed.
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 is not significant because: (i) The zone encompasses
only a small portion of the waterway; (ii) the zone does not encroach
into the charted channel; (iii) vessels are able to pass safely around
the zone; and (iv) vessels will 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 security zone is the minimum necessary to provide
adequate protection for Coast Guard Cutters, their crews, other vessels
operating in the vicinity, adjoining areas and the public. The entities
most likely to be affected are tug and barge companies transiting the
Oakland Estuary and pleasure craft engaged in recreational activities
and sightseeing.
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 for several reasons: The zone does not extend into the charted
channel, vessel traffic can pass safely around the area, and 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 would 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 offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process.
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 1-800-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 31739]]
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 might
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. An ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' (CED) will be available in the
docket where located under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports 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. 165.1190 to read as follows:
Sec. 165.1190 Security Zone; San Francisco Bay, Oakland Estuary,
Alameda, CA.
(a) Location. The following area is a security zone: all navigable
waters of the Oakland Estuary, California, from the surface to the sea
floor, 150 feet into the Oakland Estuary surrounding the Coast Guard
Island Pier. The perimeter of the security zone commences at a point on
land approximately 150 feet north of the northern end of the Coast
Guard Island Pier at latitude 37[deg]46'53.6'' N and longitude
122[deg]15'06.1'' W; thence out to the edge of the charted channel at
latitude 37[deg]46'52.3'' N and longitude 122[deg]15'07.9'' W; thence
along the edge of the charted channel to latitude 37[deg]46'42.2'' N
and longitude 122[deg]14'50.5'' W; thence to a point on land
approximately 150 feet south of the southern end of the Coast Guard
Island Pier at latitude 37[deg]46'44.8'' N and longitude
122[deg]14'48.8'' W; thence along the shoreline back to the beginning
point, latitude 37[deg]46'53.6'' N and longitude 122[deg]15'06.1'' W.
(b) Regulations. (1) Under Sec. 165.33, entry into or remaining 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 415-399-3547 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 designated
representative.
Dated: May 5, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 04-12825 Filed 6-4-04; 8:45 am]
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