[Federal Register: July 23, 2004 (Volume 69, Number 141)]
[Rules and Regulations]
[Page 43913-43916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy04-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Diego 04-015]
RIN 1625-AA87
Security Zone: Coronado Bay Bridge, San Diego, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing permanent security zones
extending 25 yards in and under the navigable waters around all piers,
[[Page 43914]]
abutments, fenders and pilings of the Coronado Bay Bridge. This action
is required for national security reasons to protect the bridge from
potential subversive actions. Persons and vessels are prohibited from
entering into, transiting through, loitering, or anchoring within these
security zones unless authorized by the Captain of the Port, or his
designated representative.
DATES: This rule is effective August 23, 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 SD 04-015 and are available for inspection or
copying at Coast Guard Marine Safety Office San Diego, Port Operations
Department, 2716 North Harbor Drive, San Diego, California, 92101,
between 8 a.m. and 4 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Todd Taylor, USCG,
c/o U.S. Coast Guard Captain of the Port, telephone (619) 683-6495.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On January 16, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone: Coronado Bay Bridge, San Diego, CA''
in the Federal Register (69 FR 2554). We received no letters commenting
on the proposed rule. No public meeting was requested, and none was
held. COTP San Diego issued a temporary final rule (TFR) for this
security zone that was effective November 7, 2003, to May 1, 2004 (68
FR 67946, December 5, 2003). No comments or letters were received as a
result of the TFR.
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 October
2002 attack of a tank vessel off the coast of Yemen and the 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 as evidenced by the
September 11, 2001, attacks and that such disturbances continue 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); Continuation of
the National Emergency With Respect To Persons Who Commit, Threaten To
Commit, Or Support Terrorism (67 FR 59447, September 20, 2002).
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag
and Effective U.S. controlled Vessels and other Maritime Interests,
detailing the current threat of attack, MARAD 02-07 (October 10, 2002).
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 the Coronado Bridge would have on the
public interest, the Coast Guard proposes to establish security zones
around the Coronado Bridge. These security zones would help the Coast
Guard to prevent vessels or persons from engaging in terrorist actions
against these bridges. Due to these heightened security concerns and
the catastrophic impact a terrorist attack on these bridges would have
on the public transportation system and surrounding areas and
communities, security zones are prudent for these structures.
U.S. Coast Guard personnel will enforce this security zone. The
Coast Guard may be assisted by other Federal, State, county, municipal
or private agencies, including the Coast Guard Auxiliary. 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 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, 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.
This regulation is promulgated under the authority of 33 U.S.C.
1225 in addition to the authority contained in 50 U.S.C. 191 and 33
U.S.C. 1231.
Discussion of Comments and Changes
We received no comments on our proposed rule. Therefore, our final
rule remains the same as our proposed rule.
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).
The anticipated economic impact of this rule is so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is deemed unnecessary. Although the rule restricts access to
portions of the navigable waterways around the bridge, the effect of
this regulation will not be significant because: (i) The zones would
encompass only a small portion of the waterway; (ii) vessels would be
able to pass safely around the zones; and (iii) vessels would 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 security zones are the minimum necessary to
provide adequate protection for the bridges, vessels operating in the
vicinity, their crew and
[[Page 43915]]
passengers, adjoining areas and the public. The entities most likely to
be affected are commercial vessels transiting the main ship channel en
route the southern San Diego Bay and Chula Vista ports 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
would not have a significant economic impact on a substantial number of
small entities. The security zones would not have a significant
economic impact on a substantial number of small entities for several
reasons: small vessel traffic could pass safely around the security
zones and vessels engaged in recreational activities, sightseeing and
commercial fishing would have ample transit area 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.
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.
Collection of Information
This rule would call 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 would not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This 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 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 would 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 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 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.
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. 165.1110 to read as follows:
Sec. 165.1110 Security Zone: Coronado Bay Bridge, San Diego, CA.
(a) Location. All navigable waters of San Diego Bay, from the
surface to the sea floor, within 25 yards of all piers, abutments,
fenders and pilings of the Coronado Bay Bridge. These security zones
will not restrict the main navigational channel nor will it restrict
vessels from transiting through the channel.
(b) Regulations. (1) Under Sec. 165.33, entry into, transit
through, loitering, or anchoring within any of these security zones by
all persons and vessels is prohibited, unless authorized by the Captain
of the Port, or his designated representative. Mariners seeking
permission to transit through a security zone may request authorization
to do so from Captain of the Port or his designated representative. The
Coast
[[Page 43916]]
Guard can be contacted on San Diego Bay via VHF-FM channel 16.
(2) Vessels may enter a security zone if it is necessary for safe
navigation and circumstances do not allow sufficient time to obtain
permission from the Captain of the Port.
Dated: July 9, 2004.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 04-16836 Filed 7-22-04; 8:45 am]
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