[Federal Register: September 13, 2004 (Volume 69, Number 176)]
[Proposed Rules]
[Page 55122-55125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se04-14]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Diego 04-019]
RIN 1625-AA87
Security Zone; San Diego Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to expand the geographical boundaries
of the permanent security zone at Naval Base San Diego. This action is
required to provide adequate area for the U.S. Navy to install an
upgraded barrier system and provide the minimum required separation
distances between the barrier and protected assets at Naval Station San
Diego. The proposed security zone would run adjacent to the navigation
channel between Pier 14 and Pier 5. From the edge of the navigation
channel west of Pier 5, the proposed security zone extends to a point
650 feet opposite of Pier 1.
The existing security zone at Naval Station San Diego, implemented
on April 15, 2003, does not provide the area necessary for this
upgraded barrier system.
DATES: Comments and related material must reach the Coast Guard on or
before October 13, 2004.
ADDRESSES: You may mail comments and related material to Coast Guard
Sector San Diego, 2716 North Harbor Drive, San Diego, California,
92101. Sector San Diego, Prevention Department maintains the public
docket for these rulemakings. 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 Coast Guard Sector San Diego,
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: MSTC Todd Taylor at (619) 683-6495.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in these rulemakings 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
Diego 04-019), indicate the specific section of this document to which
each comment applies, and give the reason for each comment. Please
submit all comments
[[Page 55123]]
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 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 these proposed rules 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 Marine Safety Office San Diego at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid these rulemakings, we will hold one at
a time and place announced by a later notice in the Federal Register.
Background and Purpose
On May 12, 2003, the Coast Guard published a final rule creating a
permanent security zone at Naval Station San Diego (68 FR 25288). This
security zone allowed the U.S. Navy to install a small barrier system
to protect critical assets at Naval Station San Diego. The U.S. Navy
now intends to install a permanent waterfront boat barrier to protect
all assets berthed at Naval Station San Diego. The existing security
zone does not provide enough area to install the permanent barrier and
provide the required minimum separation distance between the barrier
and protected assets.
Discussion of the Proposed Rule
Existing U.S. Navy Instructions (OPNAVINST 5530.14C Chapter 2)
identify a minimum separation distance of 400 feet between the Port
Security Barrier and protected assets. Because the security zone must
not enter the navigation channel, a 400-foot separation is not
practical along the south end of the waterfront between Pier 5 and Pier
13. Between those piers, the Coast Guard proposes extending the
security zone to the edge of the navigation channel. From Pier 5 north
to Pier 1, the Coast Guard proposes extending the security zone to a
point 650 feet opposite the northern end of Pier 1. From that point,
the security zone would extend to the starting point of the existing
security zone. From Pier 5 north, the proposed security zone is
shoreside of the navigation channel.
The modification and expansion of this security zone will prevent
recreational and commercial craft from interfering with military
operations involving all naval vessels home-ported at Naval Base San
Diego, and it will protect transiting recreational and commercial
vessels, and their respective crews, from the navigational hazards
posed by such military operations. It will also safeguard vessels and
waterside facilities from destruction, loss, or injury from sabotage or
other subversive acts, accidents, or other causes of a similar nature.
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.
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 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 5-10 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, and a civil penalty
of not more than $25,000 for each day of a continuing violation.
The Captain of the Port will 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.
Due to National Security interests, the implementation of this
security zone is necessary for the protection of the United States and
its people. The size of the zone is the minimum necessary to provide
adequate protection for U.S. Naval vessels, their crews, adjoining
areas, and the public. The entities most likely to be affected, if any,
are pleasure craft engaged in recreational activities and sightseeing.
Any hardships experienced by persons or vessels are considered minimal
compared to the national interest in protecting U.S. Naval vessels,
their crews, and the public.
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
rules would not have a significant economic impact on a substantial
number of small entities because the expanded zone will still allow
sufficient room for vessels to transit the channel unimpeded.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that these rules 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 these rules would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
[[Page 55124]]
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding these proposed rules so that they can better
evaluate its effects on them and participate in the rulemakings. 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 MSTC Todd Taylor,
Sector San Diego at (619) 683-6495. The Coast Guard will not retaliate
against small entities that question or complain about this rule or any
policy or action of the Coast Guard.
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 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
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would not affect 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. The rule is not economically significant 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. We
invite your comments on how these proposed rules might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
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 the rule 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 rule has not been designated by the
Administrator of the Office of Information and Regulatory Affairs as
significant energy actions. Therefore, it does not require a Statement
of Energy Effects under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
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.
The U.S. Navy has separately considered the impact of their
proposed project including the placement of anti-small boat barrier
booms. The Coast Guard's analysis pertains solely to the expanded
placement of the small markers designating the security zones already
in the waterway. A draft ``Environmental Analysis Check List'' and a
draft ``Categorical Exclusion Determination'' (CED) are 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. Revise Sec. 165.1101 to read as follows:
Sec. 165.1101 Security Zone: San Diego Bay, CA.
(a) Location. The following area is a security zone: the water area
within Naval Station, San Diego enclosed by a line connecting the
following points: Beginning at 32[deg]41'16.5'' N, 117[deg]08'01'' W
(Point A); thence running southwesterly to 32[deg]41'00.0'' N,
[[Page 55125]]
117[deg]08'12.7'' W (Point B); to 32[deg]40'36.0'' N 117[deg]07'49.1''
W (Point C); to 32[deg]40'27.4'' N, 117[deg]07'34.6'' W (Point D); to
32[deg]39'36.4'' N, 117[deg]07'24.8'' W (Point E); to 32[deg]39'38.5''
N 117[deg]07'06.5'' W, (Point F); thence running generally
northwesterly along the shoreline of the Naval Station to the beginning
point. All coordinates referenced use datum: NAD 1983.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into the area of this zone is
prohibited unless authorized by the Captain of the Port San Diego;
Commander, Naval Base San Diego; Commander, Navy Region Southwest; or
the Commanding Officer, Naval Station, San Diego.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port at telephone number 619-683-6495 or on
VHF 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) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the
authority for this section includes 33 U.S.C. 1226.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of this security zone by the U. S. Navy.
Dated: August 25, 2004.
John E. Long,
Captain, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 04-20545 Filed 9-10-04; 8:45 am]
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