[Federal Register: June 21, 2004 (Volume 69, Number 118)]
[Rules and Regulations]
[Page 34280-34283]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn04-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-009]
RIN 1625-AA00
Security Zones; San Francisco Bay, San Francisco, CA and Oakland
CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing fixed security zones in areas
of the San Francisco Bay adjacent to San Francisco International
Airport and Oakland International Airport. These security zones are
necessary to ensure public safety and prevent sabotage or terrorist
acts at these airports. Entry into these security zones is prohibited,
unless specifically authorized by the Captain of the Port San Francisco
Bay, or his designated representative.
DATES: This rule is effective August 1, 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 03-009 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 September 21, 2001, we issued a temporary final rule under
docket COTP San Francisco Bay 01-009, and published that rule in the
Federal Register (66 FR 54663, Oct. 30, 2001). That rule (codified as
33 CFR 165.T11-095) established a security zone extending 1800 yards
seaward from the Oakland airport shoreline and a security zone
extending 2000 yards seaward from the San Francisco airport shoreline.
Upon further reflection, and after discussion with airport officials
and members of the public, we issued a new temporary rule in Title 33
of the Code of Federal Regulations. That rule (67 FR 5482, Feb. 6,
2002, codified as 33 CFR 165.T11-097) reduced the size of the security
zones to 1000 yards seaward from both the Oakland and San Francisco
airport shorelines.
We received several written comments about the 1000-yard security
zones established by that rule (33 CFR 165.T11-097). Virtually all of
those comments urged a reduction in size of the security zones in order
to allow increased public access to San Francisco Bay for fishing,
windsurfing and similar uses. As a result, we issued a new temporary
rule (67 FR 44566, July 3, 2002) that further reduced the size of the
security zones to 200 yards seaward from both the Oakland and San
Francisco airport shorelines. That rule (codified as 33 CFR 165.T11-
086) expired on December 21, 2002.
Since the time that the security zones were allowed to expire,
there were several security incursions involving personnel gaining
access to the airports from boats. In addition, the Department of
Homeland Security in consultation with the Homeland Security Council,
raised the national threat level on December 21, 2003, and since then,
from an Elevated to High risk of terrorist attack based on intelligence
indicating that Al-Qaeda was poised to launch terrorist attacks against
U.S. interests. To address these security concerns and to take steps to
prevent the catastrophic impact that a terrorist attack against one of
these airports would have on the public interest, we published a notice
of proposed rulemaking (NPRM) entitled ``Security Zones; San Francisco
Bay, San Francisco, CA and Oakland, CA'' in the Federal Register (69 FR
2320, January 15, 2004) proposing to establish permanent security zones
extending approximately 200 yards seaward around the Oakland and San
Francisco airports. We received no letters 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 $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
[[Page 34281]]
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 would 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.
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 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 and to take steps to prevent the catastrophic impact
that a terrorist attack against these airports would have on the
public, the Coast Guard is establishing two fixed security zones within
the navigable waters of San Francisco Bay extending approximately 200
yards seaward from the shorelines of the Oakland International Airport
and the San Francisco International Airport. The two security zones are
designed to provide increased security for the airports, while
minimizing the impact to vessel traffic, fishing, windsurfing and other
activities upon San Francisco Bay. Two hundred yards from the shoreline
is estimated to be an adequate zone size to provide increased security
for each airport by providing a standoff distance for blast and
collision, a surveillance and detection perimeter, and a margin of
response time for security personnel. Buoys will be installed by the
respective airports to indicate the perimeter of each of the security
zones.
This rule, for security reasons, will 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 one of these airports would have on the public, the
transportation system, and surrounding areas and communities, security
zones are prudent for these airports.
Discussion of Comments and Changes
We received no letters commenting on the proposed rule. No public
hearing was requested, and none was held. The only change made in this
final rule is a minor correction to the last geographical coordinate
used to describe the security zone around the San Francisco
International Airport. A more accurate charting program than was
originally used revealed that the latitude and longitude used in the
NPRM indicates a position slightly offshore from the intended on-shore
position. This change is not considered significant, and the general
description of the security zones is not effected.
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).
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary. Although this regulation restricts access to the
zones, the effect of this regulation is not significant because: (i)
These security zones are established in an area of the San Francisco
Bay that is seldom used, (ii) the zones encompass only a small portion
of the waterway; (iii) vessels are 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.
The size of the security zones is the minimum necessary to provide
adequate protection for the San Francisco International Airport and the
Oakland International Airport. The entities most likely to be affected
are small recreational vessel traffic engaged in fishing or sightseeing
activities.
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: these security zones do not occupy an
area of the San Francisco Bay that is frequently transited, small
vessel traffic is able to 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. Buoys are being installed to mark the perimeter of the
security zone at each airport and small entities and the maritime
public will be advised of these security zones 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 Cast Guard, call 1-800-REG-FAIR
(1-888-734-3247).
[[Page 34282]]
Collection of Information
This proposed 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 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. 165.1192 to read as follows:
Sec. 165.1192 Security Zones; Waters surrounding San Francisco
International Airport and Oakland International Airport, San Francisco
Bay, California.
(a) Locations. The following areas are security zones:
(1) San Francisco International Airport Security Zone. This
security zone includes all waters extending from the surface to the sea
floor within approximately 200 yards seaward from the shoreline of the
San Francisco International Airport and encompasses all waters in San
Francisco Bay within a line connecting the following geographical
positions--
------------------------------------------------------------------------
Latitude Longitude
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37[deg]36'19'' N 122[deg]22'36'' W
37[deg]36'45'' N 122[deg]122'18'' W
37[deg]36'26'' N 122[deg]21'30'' W
37[deg]36'31'' N 122[deg]21'21'' W
37[deg]36'17'' N 122[deg]20'45'' W
37[deg]36'37'' N 122[deg]20'40'' W
37[deg]36'50'' N 122[deg]21'08'' W
37[deg]37'00'' N 122[deg]21'12'' W
37[deg]37'21'' N 122[deg]21'53'' W
37[deg]37'39'' N 122[deg]21'44'' W
37[deg]37'56'' N 122[deg]21'51'' W
37[deg]37'50'' N 122[deg]22'20'' W
37[deg]38'25'' N 122[deg]22'54'' W
37[deg]38'23'' N 122[deg]23'01'' W
------------------------------------------------------------------------
and along the shoreline back to the beginning point.
(2) Oakland International Airport Security Zone. This security zone
includes all waters extending from the surface to the sea floor within
approximately 200 yards seaward from the shoreline of the Oakland
International Airport and encompasses all waters in San Francisco Bay
within a line connecting the following geographical positions--
------------------------------------------------------------------------
Latitude Longitude
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37[deg]43'35'' N 122[deg]15'00'' W
37[deg]43'40'' N 122[deg]15'05'' W
37[deg]43'34'' N 122[deg]15'12'' W
37[deg]43'24'' N 122[deg]15'11'' W
37[deg]41'54'' N 122[deg]13'05'' W
37[deg]41'51'' N 122[deg]12'48'' W
37[deg]41'53'' N 122[deg]12'44'' W
37[deg]41'35'' N 122[deg]12'18'' W
37[deg]41'46'' N 122[deg]12'08'' W
37[deg]42'03'' N 122[deg]12'34'' W
37[deg]42'08'' N 122[deg]12'32'' W
37[deg]42'35'' N 122[deg]12'30'' W
37[deg]42'40'' N 122[deg]12'06'' W
------------------------------------------------------------------------
and along the shoreline back to the beginning point.
(b) Regulations. (1) Under Sec. 165.33, 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.
[[Page 34283]]
(2) Persons desiring to transit the area of a 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 or her designated
representative.
(c) Enforcement. All persons and vessels shall comply with the
instructions of the Coast Guard Captain of the Port or the designated
on-scene patrol personnel. Patrol personnel comprise commissioned,
warrant, and petty officers of the Coast Guard onboard Coast Guard,
Coast Guard Auxiliary, local, state, and federal law enforcement
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by
siren, radio, flashing light, or other means, the operator of a vessel
shall proceed as directed.
Dated: June 3, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 04-13974 Filed 6-18-04; 8:45 am]
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