[Federal Register: January 24, 2005 (Volume 70, Number 14)]
[Rules and Regulations]
[Page 3299-3302]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja05-4]
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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: Final rule.
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SUMMARY: The Coast Guard is establishing 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 can 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 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 security zones 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: This rule is effective February 23, 2005.
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 COTP 04-007 and are available for inspection or
copying at the Waterways Branch of the 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:
Regulatory Information
On July 19, 2004, we published a notice of proposed rulemaking
(NPRM) in the Federal Register (69 FR 42950) proposing to establish
permanent security zones around the three piers at the MOTCO facility.
This NPRM incorrectly stated that lighted buoys would be used to mark
the perimeter of the proposed security zones and that the MOTCO Piers
were numbered from east to west instead of west to east. Because of
these errors, a supplemental NPRM was published in the Federal Register
(69 FR 55125) on September 13, 2004 to correct the errors in the
initial NPRM and provide 60 more days for the public to comment. We
received no letters commenting on the proposed rule. No public hearing
was requested, and none was held.
Penalties for Violating Security Zone
Vessels or persons violating this security zone 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
[[Page 3300]]
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 will enforce these 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.
Background and Purpose
In its effort to thwart potential 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 (Public Law 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 take steps to prevent the
catastrophic impact that a terrorist attack against the MOTCO facility
would have on the people, ports, waterways, and properties of the Port
Chicago and Suisun Bay areas, the Coast Guard is establishing 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. These security zones are necessary to
safeguard vessels, cargo, crew, 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.
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 are creating three smaller security zones
that surround only the pier, or piers, being used for a military onload
or offload, and the security zone(s) will only be enforced during an
onload or offload operation. This allows the Coast Guard to provide
additional security for the facility during military operations without
having to publish a temporary final rule each time an operation occurs,
while minimizing the negative impacts to vessel traffic, fishing, and
other activities in Suisun Bay. Five hundred yards around the pier(s)
is estimated to be an adequate zone size to provide increased security
for military operations by providing a standoff distance for blast and
collision, a surveillance and detection perimeter, and a margin of
response time for security personnel.
This rule, for security reasons, prohibits the entry of any vessel
or person inside the security zone without specific authorization from
the Captain of the Port or his designated representative. 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.
Discussion of Comments and Changes
We received no letters commenting on either the initial proposed
rule or the revised rule we proposed in our September 2004 supplemental
NPRM (69 FR 55125). No public hearing was requested, and none was held.
Therefore, we made no change from the rule we proposed in our
supplemental NPRM.
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).
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary. Although this rule restricts access to the
waters encompassed by the security zones, the effect of this regulation
is not significant because: (i) The zones only encompass small portions
of the waterway; (ii) smaller vessels are 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 size of the security 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 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 will
not have a significant economic impact on a substantial number of small
entities for several reasons: (i) Small vessel traffic is able to pass
safely around the area, (ii) vessels engaged in recreational
activities, sightseeing and commercial fishing have ample space outside
of the security zones to engage in these activities, and (iii) 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.
In addition, small entities and the maritime public will be advised of
these security zones via public notice to mariners and by Coast Guard
patrol personnel.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they
[[Page 3301]]
could better evaluate its effects on them and participate in the
rulemaking process.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
Regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Cast Guard, call 1-800-REG-FAIR
(1-888-734-3247).
Collection of Information
This 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 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 does not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will 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 does 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 does 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.
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 rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
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 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.
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. 165.1199, to read as follows:
Sec. 165.1199 Security Zones; Military Ocean Terminal Concord
(MOTCO), Concord, California.
(a) Location. The security zone(s) 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.
(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
[[Page 3302]]
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 San Francisco Bay will cause notification of
enforcement of the security zone(s) to be made by issuing a Local
Notice to Mariners and a Broadcast Notice to Mariners to inform the
affected segments of the public. During periods that the security
zone(s) are being enforced, Coast Guard patrol personnel will notify
mariners to keep out of the security zone(s) as they approach the area.
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. When the security zone(s) are no
longer needed, the COTP will cease enforcement of the security zone(s)
and issue a Broadcast Notice to Mariners to notify the public. Upon
notice of suspension of enforcement, all persons and vessels are
granted general permissions to enter, move within and exit the security
zone(s).
Dated: January 12, 2005.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 05-1232 Filed 1-21-05; 8:45 am]
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