[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42950-42953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16247]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 04-007]
RIN 1625-AA87
Security Zone; Suisun Bay, Concord, CA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish fixed security zones in
the navigable waters of the United States around each of the three
piers at the Military Ocean Terminal Concord (MOTCO), California
(formerly United States Naval Weapons Center Concord, California), any
combination of which would be enforced by the Captain of the Port
(COTP) San Francisco Bay during the onloading or offloading of military
equipment and ordnance, depending on which pier, or piers, are being
used. In light of recent terrorist actions against the United States,
these proposed security zones are necessary to ensure the safe
onloading and offloading of military equipment and to ensure the safety
of the public from potential subversive acts. The proposed security
zones would prohibit all persons and vessels from entering, transiting
through or anchoring within portions of the Suisun Bay within 500 yards
of any MOTCO pier, or piers, where military onload or offload
operations are taking place, unless authorized by the COTP or his
designated representative.
DATES: Comments and related material must reach the Coast Guard on or
before September 17, 2004.
ADDRESSES: You may mail comments and related material to the Waterways
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco
Bay, Coast Guard Island, Alameda, California 94501. The Waterways
Management Branch maintains the public docket for this rulemaking.
Comments and material received from the public, as well as documents
indicated in this preamble as being available in the docket, will
become part of this docket and will be available for inspection or
copying at the Waterways Management Branch 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.
[[Page 42951]]
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (04-007),
indicate the specific section of this document to which each comment
applies, and give the reason for each comment. Please submit all
comments and related material in an unbound format, no larger than 8\1/
2\ by 11 inches, suitable for copying. If you would like to know that
your submission reached us, please enclose a stamped, self-addressed
postcard or envelope. We will consider all comments and material
received during the comment period. We may change this proposed rule in
view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to the Waterways Management Branch at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid this rulemaking, we will hold one at a
time and place announced by a separate notice in the Federal Register.
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.
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 and 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 proposed rulemaking, to address the
aforementioned security concerns and to take steps to prevent the
catastrophic impact that a terrorist attack against the MOTCO facility
would have on the public, we propose to establish three security zones
in the navigable waters of the United States within 500 yards of any
MOTCO pier, or piers, where military onload or offload operations are
taking place to safeguard vessels, cargo and crew. These proposed
security zones are necessary to safeguard the MOTCO terminal and the
surrounding property from sabotage or other subversive acts, accidents
or criminal acts. These zones are 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. Due to heightened security concerns and the
catastrophic impact a terrorist attack on this facility would have on
the public, environment, transportation system, surrounding areas, and
nearby communities, establishing security zones is a prudent and
necessary action for this facility.
Previously, for each military operation at MOTCO, a temporary final
rule would be written and published to establish a temporary security
zone around the entire MOTCO facility, and the maritime public would be
advised of the security zone using a Broadcast Notice to Mariners
(BNM). In this rulemaking, we propose to create three smaller security
zones that would surround only the pier, or piers, being used for a
military onload or offload. This would accomplish the same goal of
providing additional security for the facility during military
operations, and would continue the practice of notifying mariners of
the security zone(s), but would remove the need to publish a temporary
final rule in the Federal Register each time an operation occurs. This
proposed rule would add Sec. 165.1199, Security Zones; Suisun Bay,
Concord, California, to Title 33 of the Code of Federal Regulations.
Discussion of Proposed Rule
The Coast Guard proposes to establish fixed security zones
encompassing the navigable waters, extending from the surface to the
sea floor, within 500 yards around each of the three MOTCO piers, any
combination of which would be enforced by the COTP during the onloading
or offloading of military equipment and ordnance, depending on which
pier, or piers, are being used. There are three existing piers at the
MOTCO facility. Originally there were four piers, numbered One through
Four from east to west, but Pier One was destroyed in an explosion in
1944. Therefore, Pier Two is now the easternmost pier. The proposed
500-yard security zone around Pier Two would encompass portions of both
the Roe Island Channel and the Port Chicago Reach sections of the
deepwater channel. The proposed 500-yard security zone around Pier
Three would encompass a small portion of the Roe Island Channel and
most of the Port Chicago Reach section of the deepwater channel. The
proposed 500-yard security zone around Pier Four would encompass
portions of both the Port Chicago Reach and the Middle Ground West
Reach sections of the deepwater channel. If more than one pier is
involved in onload or offload operations at the same time, the proposed
security zone for each of the piers being used would be enforced.
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Prior to the commencement of a military onload or offload, the COTP
San Francisco Bay will cause notification of enforcement of the
security zone(s) to be made by all appropriate means to effect the
widest publicity among the affected segments of the public, including,
but not limited to, issuing a Local Notice to Mariners and a Broadcast
Notice to Mariners. In addition, Coast Guard Group San Francisco Bay
maintains a telephone line that is maintained 24 hours a day, 7 days a
week. The public can contact Group San Francisco Bay at (415) 399-3530
to obtain information concerning enforcement of this rule. By the same
means, the COTP will also cause notice of the suspension of enforcement
of the security zone(s) in this rule to be made. Upon notice of
suspension of enforcement, all persons and vessels are granted general
permissions to enter, move within and exit the security zone(s).
In addition to restricting access to the pier, or piers, where
military operations are taking place, each of these proposed security
zones would provide necessary standoff distance for blast and
collision, surveillance and detection perimeter, and a margin of
response time for security personnel. This proposed rule, for security
reasons, would prohibit entry of any vessel or person inside any of the
security zones without specific authorization from the Captain of the
Port or his designated representative.
Vessels or persons violating this section would 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 zones 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 would enforce these proposed 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 proposed 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 proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary. Although this proposed rule
restricts access to the waters encompassed by the security zones, the
effect of this proposed rule would not be significant because: (i) The
zones would encompass only small portions of the waterway; (ii) smaller
vessels would be able to pass safely around the zones; and (iii) larger
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 sizes of the proposed zones are 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 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 proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule may 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, and owners and operators of
private vessels intending to fish or sightsee near the MOTCO facility.
The proposed security zones would not have a significant economic
impact on a substantial number of small entities for several reasons:
(i) Although the security zones would occupy sections of the navigable
channel adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels
may receive authorization to transit through the zones by the Captain
of the Port or his designated representative on a case-by-case basis,
(ii) small vessel traffic would be able to pass safely around the area,
and (iii) vessels engaged in recreational activities, sightseeing and
commercial fishing would have ample space outside of the security zones
to engage in these activities. Small entities and the maritime public
would be advised of these security zones via public notice to mariners.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it, please submit a comment
(see ADDRESSES) explaining why you think it qualifies and how and to
what degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact Lieutenant Doug
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety
Office San Francisco Bay, at (510) 437-3073.
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
[[Page 42953]]
this proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this proposed rule elsewhere
in this preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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 proposed 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 proposed rule is categorically excluded, under figure
2-1, paragraph (34)(g), of the Instruction, from further environmental
documentation because it would establish security zones.
A draft ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' (CED) will be available in the
docket where indicated under ADDRESSES. Comments on this section will
be considered before we make the final decision on whether the rule
should be categorically excluded from further environmental review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
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.
2. Add Sec. 165.1199, to read as follows:
Sec. 165.1199 Security Zones; Military Ocean Terminal Concord
(MOTCO), Concord, California.
(a) Location. The security zones encompass the navigable waters of
Suisun Bay, California, extending from the surface to the sea floor,
within 500 yards of the three Military Ocean Terminal Concord (MOTCO)
piers in Concord, California. When enforced, the zones will be marked
by lighted buoys.
(b) Regulations. (1) The Captain of the Port (COTP) San Francisco
Bay will enforce the security zone(s) established by this section
during military onload or offload operations only upon notice. Upon
notice of enforcement by the COTP, entering, transiting through or
anchoring in the zone(s) is prohibited unless authorized by the COTP or
his designated representative. Upon notice of suspension of enforcement
by the COTP, all persons and vessels are granted general permissions to
enter, transit, and exit the security zone(s).
(2) If more than 1 pier is involved in onload or offload operations
at the same time, the 500-yard security zone for each involved pier
will be enforced.
(3) Persons desiring to transit the area of a security zone may
contact the Patrol Commander on scene on VHF-FM channel 13 or 16 or the
COTP at telephone number 415-399-3547 to seek permission to transit the
area. If permission is granted, all persons and vessels must comply
with the instructions of the COTP or his designated representative.
(c) Enforcement. All persons and vessels must 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. The U.S. Coast Guard may be assisted in the patrol and
enforcement of the security zones by local law enforcement and the
MOTCO police as necessary. Upon being hailed by U.S. Coast Guard patrol
personnel by siren, radio, flashing light, or other means, the operator
of a vessel must proceed as directed.
(d) Notice of enforcement or suspension of enforcement of security
zone(s). The COTP will cause notice of the enforcement of the security
zone(s) to be made by all appropriate means to effect the widest
publicity among the affected segments of the public including, but not
limited to, issuing a Local Notice to Mariners and a Broadcast Notice
to Mariners. The COTP will also issue a Local Notice to Mariners and
Broadcast Notice to Mariners to notify the public when enforcement of
the security zone(s) is suspended.
Dated: July 6, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 04-16247 Filed 7-16-04; 8:45 am]
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