[Federal Register: January 15, 2004 (Volume 69, Number 10)]
[Proposed Rules]
[Page 2320-2323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja04-22]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish 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 would be
prohibited, unless specifically authorized by the Captain of the Port
San Francisco Bay, or his designated representative.
DATES: Comments and related material must reach the Coast Guard on or
before March 15, 2004.
ADDRESSES: You may mail comments and related material to the Waterways
Branch of the Marine Safety Office San Francisco Bay, Coast Guard
Island, Alameda, California, 94501. The Waterways Branch of Coast Guard
Marine Safety Office San Francisco Bay 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 Coast Guard 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:
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 03-009), 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 81/2 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 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.
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.
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
[[Page 2321]]
extending 1,800 yards seaward from the Oakland airport shoreline and a
security zone extending 2,000 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 1,000 yards seaward from both the Oakland and San
Francisco airport shorelines.
We received several written comments about the 1,000-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 have been 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,
recently made the decision to raise the national threat level from an
Elevated to High risk of terrorist attack based on intelligence
indicating that Al-Qaida is 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, the Coast Guard
proposes to establish permanent security zones extending approximately
200 yards seaward around the Oakland and San Francisco airports. These
security zones are necessary to provide for the safety of individuals
and facilities within and adjacent to the San Francisco and Oakland
airports and to ensure that the airports are not used as targets of, or
platforms for, terrorist attacks. 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 Proposed Rule
In this proposed rule, the Coast Guard would establish two 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
would be installed to indicate the perimeter of the security zone at
each airport. This proposed rule, for security reasons, would prohibit
entry of any vessel or person inside the security zone without specific
authorization from the Captain of the Port or his designated
representative.
Vessels or persons violating this proposed security zone 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 regulation
restricts access to the zones, the effect of this regulation would not
be significant because: (i) These security zones are established in an
area of the San Francisco Bay that is seldom used, (ii) the zones would
encompass only a small portion of the waterway; (iii) vessels would be
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 proposed 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 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 for several reasons: These security zones
would not occupy an area of the San Francisco Bay that is frequently
transited, small vessel traffic would be 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 would be installed to mark the
perimeter of the security zone at each airport and 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 rule would have
a
[[Page 2322]]
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 (Public Law 104-121), we want to assist small
entities in understanding this proposed rule so that we 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 the person listed
under FOR FURTHER INFORMATION CONTACT for assistance in understanding
this proposed rule.
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 an
expenditure, we do discuss the effects of this 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. We
invite your comments on how this proposed rule 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 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.
An ``Environmental Analysis Check List'' and a draft ``Categorical
Exclusion Determination'' (CED) will be available in the docket where
located 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), Reports and record
keeping 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. 165.1192 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
37[deg]36'19'' N 122[deg]22'36'' W
37[deg]36'45'' N 122[deg]22'18'' 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]38'25'' N 122[deg]23'02'' 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
[[Page 2323]]
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
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.
(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. 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. 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.
Dated: January 5, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 04-914 Filed 1-14-04; 8:45 am]
BILLING CODE 4910-15-P