[Federal Register: January 29, 2004 (Volume 69, Number 19)]
[Proposed Rules]
[Page 4267-4269]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja04-23]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish 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 would prohibit 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: Comments and related material must reach the Coast Guard on or
before March 29, 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, Waterways
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco
Bay, (510) 437-3073.
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 (COTP San
Francisco Bay 03-026), 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 they 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
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 proposed rulemaking, to address the
aforementioned security concerns and to take steps to prevent a
terrorist attack against these valuable national assets, the Coast
Guard is proposing to establish a permanent security zone around and
under the United States Coast Guard Island Pier. This security zone
would help the Coast Guard to
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prevent vessels or persons from engaging in terrorist actions against
Coast Guard Cutters that moor at the Coast Guard Island Pier. 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, it is prudent for the Coast Guard to
establish a security zone for this location.
Discussion of Proposed Rule
The Coast Guard proposes to establish a fixed security zone around
and under the Coast Guard Island Pier that encompasses all 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 would commence at a point on land approximately 150 feet
north of the northern end of the Coast Guard Island Pier at latitude
3746'53.6'' N and longitude 12215'06.1''
W; thence out to the edge of the charted channel at latitude
3746'52.3'' N and longitude 12215'07.9''
W; thence along the edge of the charted channel to latitude
3746'42.2'' N and longitude 12215'50.5''
W; thence to a point on land approximately 150 feet south of the
southern end of the Coast Guard Island Pier at latitude
3746'52.3'' N and longitude 12215'48.8''
W, thence along the shoreline back to the beginning point, latitude
3746'53.6'' N and longitude 12215'06.1''
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. Entry into this
zone would be prohibited unless specifically authorized by 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 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 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 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. 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 zone, the
effect of this proposed rule would not be significant because: (i) The
zone would encompass only a small portion of the waterway; (ii) the
zone does not encroach into the charted channel; (iii) vessels would be
able to pass safely around the zone; and (iv) vessels 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 proposed 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 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. We expect this proposed rule may affect
owners and operators of private and commercial vessels, some of which
may be small entities, transiting the Oakland Estuary. The proposed
security zone would 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.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this 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, (510) 437-3073.
Collection of Information
This proposed 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 proposed rule
under that Order and
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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 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 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. 165.1190 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 would commence at a
point on land approximately 150 feet north of the northern end of the
Coast Guard Island Pier at latitude 3746'53.6'' N and
longitude 12215'06.1'' W; thence out to the edge of the
charted channel at latitude 3746'52.3'' N and longitude
12215'07.9'' W; thence along the edge of the charted
channel to latitude 3746'42.2'' N and longitude
12215'50.5'' W; thence to a point on land approximately
150 feet south of the southern end of the Coast Guard Island Pier at
latitude 3746'52.3'' N and longitude
12215'48.8'' W, thence along the shoreline back to the
beginning point, latitude 3746'53.6'' N and longitude
12215'06.1'' 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 or her designated
representative.
(c) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the security zone by local law enforcement as
necessary.
Dated: January 7, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 04-1858 Filed 1-28-04; 8:45 am]
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