[Federal Register Volume 67, Number 25 (Wednesday, February 6, 2002)]
[Rules and Regulations]
[Pages 5482-5485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2820]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 01-011]
RIN 2115-AA97


Security Zones; San Francisco Bay, San Francisco, CA and Oakland, 
CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing two temporary security zones 
in areas of the San Francisco Bay adjacent to San Francisco 
International Airport and Oakland International Airport. These actions 
are necessary to ensure public safety and prevent sabotage or terrorist 
acts at these airports. Persons and vessels are prohibited from 
entering into or remaining in these security zones without permission 
of the Captain of the Port, or his designated representative.

DATES: This rule is effective from 5 p.m. (PDT) on October 31, 2001 to 
4:59 p.m. (PDT) on June 21, 2002. Comments and related material must 
reach the Coast Guard on or before April 8, 2002.

ADDRESSES: Any 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 docket COTP San Francisco Bay 01-011, and 
will be available for inspection or copying at U.S. Coast Guard Marine 
Safety Office, San Francisco Bay, Coast Guard Island, Alameda, CA 94501 
between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Andrew B. Cheney, U.S. 
Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On September 21, 2001, we issued a similar temporary final rule 
under docket COTP San Francisco Bay 01-009, and published this rule in 
the Federal Register (66 FR 54663, Oct. 30, 2001). Upon further 
reflection, and after discussion with airport officials and members of 
the public, we have decided to withdraw the temporary section created 
by that rule (33 CFR 165.T11-095) and issue a new temporary section in 
title 33 of the Code of Federal Regulations.
    As authorized by 5 U.S.C. 553, we did not publish a notice of 
proposed rulemaking (NPRM) for this regulation. In keeping with the 
requirements of 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM, and that under 5 U.S.C. 553 
(d)(3), good cause exists for making this regulation effective less 
than 30 days after publication in the Federal Register.
    On September 11, 2001, two commercial aircraft were hijacked from 
Logan Airport in Boston, Massachusetts and flown into the World Trade 
Center in New York, New York inflicting catastrophic human casualties 
and property damage. On the same day, a similar attack was conducted on 
the Pentagon in Arlington, Virginia. Also, on the same date, a fourth 
commercial passenger airplane was hijacked, this one from Newark, New 
Jersey, and later crashed in Pennsylvania. National security officials 
warn that future terrorist attacks against civilian targets may be 
anticipated. A heightened level of security has been established 
concerning all vessels transiting in the San Francisco Bay, and 
particularly in waters adjacent to San Francisco International Airport 
and Oakland International Airport. These security zones are needed to 
protect the United States and more specifically the people, ports, 
waterways, and properties of the San Francisco Bay area.
    The delay inherent in the NPRM process, and any delay in the 
effective

[[Page 5483]]

date of this rule, is contrary to the public interest insofar as it may 
render individuals and facilities within and adjacent to the San 
Francisco and Oakland airports vulnerable to subversive activity, 
sabotage or terrorist attack. The measures contemplated by this rule 
are intended to prevent future terrorist attacks against individuals 
and facilities within or adjacent to these west coast airports. 
Immediate action is required to accomplish these objectives. Any delay 
in the effective date of this rule is impracticable and contrary to the 
public interest.

Request for Comments

    Although the Coast Guard has good cause in implementing this 
regulation, we want to afford the maritime community the opportunity to 
participate in this rulemaking by submitting comments and related 
material regarding the size and boundaries of these security zones in 
order to minimize unnecessary burdens. If you do so, please include 
your name and address, identify the docket number for this rulemaking, 
COTP San Francisco Bay 01-011, 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 they 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 
temporary final rule in view of them.

Public Meeting

    We do not plan to hold a public meeting. However, you may submit a 
request for a meeting by writing to the person identified in the FOR 
FURTHER INFORMATION CONTACT section, or to the address under ADDRESSES 
explaining why a public meeting would be beneficial. If we determine 
that one would aid this rulemaking, we will hold one at a time and 
place announced by a later notice in the Federal Register.

Background and Purpose

    On September 11, 2001, terrorists launched attacks on civilian and 
military targets within the United States killing large numbers of 
people and damaging properties of national significance. Vessels 
operating near the airports adjacent to the San Francisco Bay present 
possible platforms from which individuals may gain unauthorized access 
to the airports.
    As part of the Diplomatic Security and Antiterrorism Act of 1986 
(Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act 
(PWSA) 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. 33 U.S.C. 1226. The terrorist acts against the United 
States on September 11, 2001 have increased the need for safety and 
security measures on U.S. ports and waterways. In response to these 
terrorist acts, and in order to prevent similar occurrences, the Coast 
Guard is establishing two temporary security zones in the navigable 
waters of the United States surrounding San Francisco International 
Airport and Oakland International Airport.
    As mentioned in the Regulatory Information section, we opened 
docket COTP San Francisco Bay 01-009 on September 21, 2001. We have 
since determined that the sizes of the zones created by that rule may 
be reduced. As a result, we are withdrawing that rule and are 
establishing new, smaller zones in this rule.
    The security zones will extend 1000 yards seaward from the 
shorelines of the San Francisco International Airport and the Oakland 
International Airport. This distance from the shoreline is estimated to 
be an adequate zone size to provide increased security for each 
airport. The two security zones are designed to provide increased 
security for the airports, while minimizing the impact to vessel 
traffic on the San Francisco Bay.
    These temporary security zones are necessary to provide for the 
safety and security of the United States of America and the people, 
ports, waterways and properties within the San Francisco Bay area. 
These zones will be enforced by the official patrol (Coast Guard 
commissioned, warrant or petty officers) onboard Coast Guard vessels 
and patrol craft. The official patrol may also be onboard the patrol 
craft and resources of any government agency that has agreed to assist 
the Coast Guard in the performance of its duties.
    Persons and vessels are prohibited from entering into or remaining 
in these security zones without permission of the Captain of the Port, 
or his designated representative. Each person and vessel in a security 
zone must obey any direction or order of the COTP. The COTP may remove 
any person, vessel, article, or thing from a security zone. No person 
may board, or take or place any article or thing on board, any vessel 
in a security zone without the permission of the COTP.
    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 for not more than 
6 years and a fine of not more than $250,000), in rem liability against 
the offending vessel, and license sanctions. Any person who violates 
this regulation, 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 (class C felony).

Regulatory Evaluation

    This temporary final 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 Transportation (DOT) (44 FR 11040, February 26, 1979).
    Due to the recent terrorist actions against the United States the 
implementation of these security zones are necessary for the protection 
of the United States and its people. Because these security zones are 
established in an area of the San Francisco Bay that is seldom used, 
the Coast Guard expects the economic impact of this rule to be so 
minimal that full regulatory evaluation under paragraph 10(e) of the 
regulatory policies and procedures of DOT is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard considered whether this rule would have a significant economic 
impact on a substantial number of small entities. The term ``Small 
entities'' include small businesses, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations less than 
50,000.
    These security zones will not have a significant impact on a 
substantial number of small entities because these security zones will 
not occupy an area of the San Francisco Bay that is frequently 
transited. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) 
that this temporary final rule will not have a significant economic 
impact

[[Page 5484]]

on a substantial number of small entities.

Assistance For Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process. If your small business or organization is affected by this 
rule and you have questions concerning its provisions or options for 
compliance, please contact Lieutenant Andrew B. Cheney, U.S. Coast 
Guard Marine Office San Francisco Bay at (510) 437-3073.
    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 1-888-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 and have 
determined that this rule 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 may 
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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation, because we are establishing security 
zones. A ``Categorical Exclusion Determination'' is available in the 
docket for inspection or copying where indicated under ADDRESSES.

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 amends 
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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.


Sec. 165.T11-095  [Removed]

    2. Remove Sec. 165.T11-095.
    3. Add new Sec. 165.T11-097 to read as follows:


Sec. 165.T11-097  Security Zones; Waters surrounding San Francisco 
International Airport and Oakland International Airport, San Francisco 
Bay, California.

    (a) Locations:
    (1) San Francisco International Airport Security Zone. This 
security zone extends 1000 yards seaward from the shoreline of the San 
Francisco International Airport and encompasses all waters in San 
Francisco Bay within an area drawn from the following coordinates 
beginning at a point latitude 37 deg. 38' 23" N and longitude 122 deg. 
23' 02" W; thence to 37 deg. 38' 25" N and 122 deg. 22' 26" W; thence 
to 37 deg. 37' 45" N and 122 deg. 21' 19" W; thence to 37 deg. 37' 11" 
N and 122 deg. 20' 46" W, thence to 37 deg. 36' 45" N and 122 deg. 20' 
42" W, thence to 37 deg. 36' 19" N and 122 deg. 20' 57" W, thence to 
37 deg. 35' 45" N and 122 deg. 21' 50" W, and along the shoreline back 
to the beginning point.
    (2) Oakland International Airport Security Zone. This security zone 
extends 1000 yards seaward from the shoreline of the Oakland 
International Airport and encompasses all waters in San Francisco Bay 
within an area drawn from the following coordinates beginning at a 
point latitude 37 deg. 44' 00" N and longitude 122 deg. 15' 11" W; 
thence to 37 deg. 43' 40" N and 122 deg. 15' 42" W; thence to 37 deg. 
43' 08" N and 122 deg. 15' 30" W; thence to 37 deg. 41' 37" N and 
122 deg. 13' 23" W; thence to 37 deg. 41' 38" N and 122 deg. 12' 25" W; 
thence to 37 deg. 42' 10" N and 122 deg. 11' 55" W, and along the 
shoreline back to the beginning point.
    (b) Effective dates. This section is in effect from 5 p.m. (PST) on 
October 31, 2001 to 4:59 p.m. (PDT) on June 21, 2002. If the need for 
these security zones ends before the scheduled

[[Page 5485]]

termination time, the Captain of the Port will cease enforcement of 
these security zones and will also announce that fact via Broadcast 
Notice to Mariners.
    (c) Regulations. In accordance with the general regulations in 
Sec. 165.33 of this part, no person or vessel may enter or remain in 
either of these security zones established by this temporary section, 
unless authorized by the Captain of the Port, or his designated 
representative. All other general regulations of Sec. 165.33 of this 
part apply in the security zones established by this temporary section.

    Dated: October 31, 2001.
L. L. Hereth,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 02-2820 Filed 2-5-02; 8:45 am]
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