[Federal Register: August 22, 2005 (Volume 70, Number 161)]
[Rules and Regulations]
[Page 48872-48874]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au05-17]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 05-006]
RIN 1625-AA87
Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is revising the perimeter of the existing
security zone that extends approximately 50 yards into the navigable
waters of the Oakland Estuary, Alameda, California, around the United
States Coast Guard Island Pier to coincide with the perimeter of a
floating security barrier. This action is necessary to provide
continued security for the military service members on board vessels
moored at the pier and the government property associated with these
valuable national assets. This security zone prohibits 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: This rule is effective starting at 12:01 a.m. on September 21,
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 05-006 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 Ian Callander, U.S. Coast
Guard Marine Safety Office San Francisco Bay, (510) 437-3401.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On January 29, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; San Francisco Bay, Oakland Estuary,
Alameda, CA'' in the Federal Register (69 FR 4267) proposing to
establish a security zone extending approximately 50 yards around the
Coast Guard Island Pier in the navigable waters of the Oakland Estuary
in Alameda, California. We received one letter commenting on the
proposed rule. No public hearing was requested, and none was held. On
June 7, 2004, we published a final rule (codified as 33 CFR 165.1190)
entitled ``Security Zone; San Francisco Bay, Oakland Estuary, Alameda,
CA'' in the Federal Register (69 FR 31737) that established a security
zone extending approximately 50 yards around the Coast Guard Island
Pier in the navigable waters of the Oakland Estuary in Alameda,
California.
Since that time, the Coast Guard determined that a floating
security barrier should also be installed to provide an added level of
security for the Coast Guard Cutters that moor at the Coast Guard
Island Pier. Because the navigational channel is less than 50 yards
from the two ends of the Coast Guard Island Pier, and in order to
provide approximately 50 yards of maneuvering space for the cutters
along the entire length of the pier, the barrier needed to extend into
the navigational channel approximately 10 to 20 yards at each end.
Since the previously published security zone did not extend into the
navigational channel, we published another NPRM entitled ``Security
Zone; San Francisco Bay, Oakland Estuary, Alameda, CA'' in the Federal
Register on May 9, 2005 (70 FR 24344) proposing to revise the perimeter
of the existing security zone around the Coast Guard Island pier to
mirror the perimeter of the floating security barrier. We received two
comments on the proposed rule. No public hearing was requested, and
none was held.
Vessels or persons violating this section are 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 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 this security zone and may
enlist the aid and cooperation of any Federal, State, county,
municipal, or 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 (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 Espionage 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, the Coast Guard is revising the
perimeter of the existing security zone around the Coast Guard Island
pier to mirror the perimeter of the floating security barrier. The need
for the security zone still exists 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.
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
[[Page 48873]]
subversive acts, accidents or other events of a similar nature. This
rule 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 one of these vessels
would have, having a security zone around the Coast Guard Island Pier
remains a prudent and necessary action.
Discussion of Comments and Changes
We received two comments on the proposed rule. No public hearing
was requested, and none was held. The first comment we received noted
that the two geographical positions provided in the NPRM that were
intended to be located on the shore of Coast Guard Island actually
plotted slightly offshore from Coast Guard Island. The two positions
have been corrected in this final rule. The second comment we received
requested that we use yards as the unit of measurement to describe the
security zone instead of feet in order to be consistent with other
security zones in the San Francisco Bay Area. As a result, we have used
yards as the unit of measurement to describe the security zone in this
final rule. Because neither of these two changes have a substantive
impact on the regulation, we feel that making these changes does not
warrant an extension to the public comment period provided by the 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).
Although this rule restricts access to the waters encompassed by
the security zone, the effects of this rule are not significant for the
following reasons: (i) 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 zone to
engage in these activities, (iii) the perimeter of the security zone
only extends 10 to 20 yards into the approximately 170-yard wide
navigational channel, and (iv) this security zone is only slightly
larger than the Coast Guard Island security zone that has been in place
since July 7, 2004.
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. The small entities most likely to be affected are tug and
barge companies transiting the Oakland Estuary. This regulation will
not have a significant economic impact on these small entities for
several reasons: (i) Vessel traffic is able to pass safely around the
area, (ii) vessels engaged in commercial towing have ample space
outside of the security zone to engage in towing activities, (iii) the
perimeter of the security zone only extends approximately 10 to 20
yards into the approximately 170-yard wide navigational channel, and
(iv) this security zone is only slightly larger than the Coast Guard
Island security zone that has been in place since July 7, 2004. Small
entities and the maritime public would be advised of this security zone
via broadcast notice to mariners, and/or local 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 offered to assist small
entities in understanding the rule so that they 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 Coast 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 will 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
[[Page 48874]]
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 establishes a security zone.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' (CED) are 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. Revise 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, approximately 50 yards into the Oakland Estuary surrounding the
Coast Guard Island Pier. The perimeter of the security zone follows the
same perimeter as the floating security barrier installed around the
Coast Guard Island pier. The perimeter of the security barrier is
located along the following coordinates: commencing at a point on land
approximately 50 yards northwest of the northwestern end of the Coast
Guard Island Pier at latitude 37[deg]46'53.60'' N and longitude
122[deg]15'06.10'' W; thence to the edge of the navigable channel at
latitude 37[deg]46'51.83'' N and longitude 122[deg]15'07.47'' W; thence
to a position approximately 10 yards into the charted navigation
channel at latitude 37[deg]46'51.27'' N and longitude
122[deg]15'07.22'' W; thence closely paralleling the edge of the
charted navigation channel to latitude 37[deg]46'46.75'' N and
longitude 122[deg]15'00.21'' W; thence closely paralleling the edge of
the charted navigation channel to a point approximately 20 yards into
the charted navigation channel at latitude 37[deg]46'42.36'' N and
longitude 122[deg]14'51.55'' W; thence to a point on land approximately
50 yards southeast of the southeastern end of the Coast Guard Island
Pier at latitude 37[deg]46'44.80'' N and longitude 122[deg]14'48.80''
W; thence northwest along the shoreline back to the beginning point.
(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 designated
representative.
(c) Enforcement. The Captain of the Port will enforce this security
zone and may be assisted in the patrol and enforcement of this security
zone by any Federal, State, county, municipal, or private agency.
Dated: August 3, 2005.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 05-16515 Filed 8-19-05; 8:45 am]
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