[Federal Register: May 9, 2005 (Volume 70, Number 88)]
[Proposed Rules]
[Page 24344-24347]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my05-22]
-----------------------------------------------------------------------
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: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes to revise the perimeter of the
existing
[[Page 24345]]
security zone that extends approximately 150 feet 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 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 June 8, 2005.
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, 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 (05-006),
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
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 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
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.
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 150 feet around the
Coast Guard Island Pier in the navigable waters of the Oakland Estuary
in Alameda, California. We received no letters 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)
with the same title in the Federal Register (69 FR 31737) that
established a security zone extending approximately 150 feet around the
Coast Guard Island Pier in the navigable waters of the Oakland Estuary
in Alameda, California.
Since that time, the Coast Guard has 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 150 feet
from the two ends of the Coast Guard Island Pier, and in order to
provide approximately 150 feet of maneuvering space for the cutters
along the entire length of the pier, the barrier would extend into the
navigational channel approximately 30 to 50 feet at each end.
In this NPRM, the Coast Guard is proposing to revise the perimeter
of the existing security zone around the Coast Guard Island pier to
mirror the perimeter of a proposed floating security barrier. The need
for the security zone still exits 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.
Discussion of Proposed Rule
The Coast Guard proposes to revise the existing 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 revision to the
existing security zone would ensure that a proposed floating security
barrier could be installed and that the perimeter of the security zone
would provide the necessary maneuvering space for Coast Guard Cutters.
The perimeter of the proposed security barrier is located along the
following coordinates: commencing at a point on land approximately 150
feet northwest of the northwestern end of the Coast Guard Island Pier
at latitude 37[deg]46'52.73'' N and longitude 122[deg]15'06.99'' 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 30 feet 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 50 feet 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 150 feet southeast of the southeastern
end of the Coast Guard Island Pier at latitude 37[deg]46'43.94'' N and
longitude 122[deg]14'49.89'' W; thence northwest along the shoreline
back to the beginning point.
The security zone continues to be 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 the revised security zone would be
[[Page 24346]]
prohibited unless specifically authorized by the Captain of the Port or
his designated representative.
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 for the following
reasons: (i) Vessel traffic would be able to pass safely around the
area, (ii) vessels engaged in recreational activities, sightseeing and
commercial fishing have ample space outside of the proposed security
zone to engage in these activities, (iii) the perimeter of the proposed
security zone would only extend 30 to 50 feet into the 500-foot wide
navigational channel, and (iv) this proposed security zone is only
slightly larger than the Coast Guard Island security zone that has been
in place since July 7, 2004.
The size of the proposed zone is the minimum necessary to provide
adequate protection for Coast Guard Cutters, their crews, other vessels
and crews operating in the vicinity, adjoining areas, and the public
while allowing adequate maneuvering space for the Coast Guard Cutters.
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 the following reasons: (i)
Vessel traffic would be able to pass safely around the area, (ii)
vessels engaged in recreational activities, sightseeing and commercial
fishing have ample space outside of the proposed security zone to
engage in these activities, and (iii) the perimeter of the proposed
security zone would only extend 30 to 50 feet into the 500-foot wide
navigational channel. In addition, small entities and the maritime
public would be advised of this revision to the existing 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 proposed 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 (Public Law 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. 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 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''
[[Page 24347]]
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 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 because we are establishing a security zone.
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 to
categorically exclude this rule 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. 165.1190 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 150 feet 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 150 feet northwest of the northwestern end of the Coast
Guard Island Pier at latitude 37[deg]46'52.73'' N and longitude
122[deg]15'06.99'' 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 30 feet 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 50 feet 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 150 feet southeast of the southeastern
end of the Coast Guard Island Pier at latitude 37[deg]46'43.94'' N and
longitude 122[deg]14'49.89'' 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: April 28, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 05-9206 Filed 5-6-05; 8:45 am]
BILLING CODE 4910-15-P