[Federal Register Volume 67, Number 128 (Wednesday, July 3, 2002)]
[Rules and Regulations]
[Pages 44566-44569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16753]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 02-014]
RIN 2115-AA97


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

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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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 June 21, 2002 to 
4:59 p.m. (PST) on December 21, 2002.

ADDRESSES: U.S. Coast Guard Marine Safety Office, San Francisco Bay, 
Coast Guard Island, Building 14, Alameda, CA 94501-5100.

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

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On October 30, 2001, we published COTP San Francisco Bay 01-009, a 
temporary final rule and request for comments, titled ``Security Zones; 
San Francisco Bay, San Francisco, CA and Oakland, CA,'' in the Federal 
Register (66 FR 54663) under 33 CFR 165.T11-095. That rule was similar 
to the one being enacted herein as it established security zones around 
both San Francisco and Oakland International airports.
    On February 6, 2002, we published COTP San Francisco Bay 01-011, a 
temporary final rule and request for comments, titled ``Security Zones; 
San Francisco Bay, San Francisco, CA and Oakland, CA'' in the Federal 
Register (67 FR 5482) under 33 CFR 165.T11-097. Similar to its 
predecessor and the rule being enacted herein, that rule also 
established security zones around both San Francisco and Oakland 
International airports.
    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 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

[[Page 44567]]

rule is impracticable and contrary to the public interest.
    As of today, the need for security zones around San Francisco and 
Oakland International airports still exists. This new temporary final 
rule will begin at 5 p.m. (PDT) on June 21, 2002, the exact time that 
the previous airport security zones cease to be in effect, and is set 
to expire at 4:59 p.m. on December 21, 2002. We have discussed with San 
Francisco and Oakland airport representatives the continuing need for 
security zones and the possibility of making those or similar zones 
permanent, a process that may require several months to complete.
    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 a 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. We have 
requested public comments when publishing the previous regulations and 
have incorporated the received comments into the security zones being 
established by this temporary final rule.

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.
    On September 21, 2001 we issued a similar 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). Upon further 
reflection, and after discussion with airport officials and members of 
the public, we 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. That rule (33 CFR 165.T11-
097, published in 67 FR 5482, Feb. 6, 2002), which established security 
zones extending 1000 yards seaward from the San Francisco and Oakland 
airport shorelines, will expire at 4:59 (LCL) on June 21, 2002.
    We received several written comments about the latest rule (33 CFR 
165.T11-097) and the 1000-yard security zones. 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. We have also discussed with San Francisco 
and Oakland airport representatives the continuing need for security 
zones and the possibility of making those or similar zones permanent, a 
process that may require several months to complete. Upon considering 
the written comments and discussions regarding the security zones, we 
have decided to issue a new temporary final rule that will establish 
temporary security zones around San Francisco International and Oakland 
International airports extending approximately 200 yards seaward from 
the shorelines of each airport.

Discussion of Rule

    The Coast Guard is establishing two security zones within the 
navigable waters of San Francisco Bay that will extend 200 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, fishing, windsurfing and other activities upon 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 shall 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 
for 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 is 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

[[Page 44568]]

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 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 Ross Sargent, 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 M16475.1D, 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, and 160.5; 49 CFR 1.46.

    2. Add new Sec. 165.T11-086 to read as follows:


Sec. 165.T11-086  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 approximately 200 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.36'19''N 
and longitude 122 deg.22'36''W; thence to 37 deg.36'45''N and 
122 deg.22'18''W; thence to 37 deg.36'26''N and 122 deg.21'30''W; 
thence to 37 deg.36'31''N and 122 deg.21'21''W; thence to 
37 deg.36'17''N and 122 deg.20'45''W; thence to 37 deg.36'37''N and 
122 deg.20'40''W; thence to 37 deg.36'50''N and 122 deg.21'08''W; 
thence to 37 deg.37'00''N and 122 deg.21'12''; thence to 
37 deg.37'21''N and 122 deg.21'53''W; thence to 37 deg.37'39''N and 
122 deg.21'44''W; thence to 37 deg.37'56''N and 122 deg.21'51''W; 
thence to 37 deg.37'50''N and 122 deg.22'20''W; thence to 
37 deg.38'25''N and 122 deg.22'54''W; thence to 37 deg.38'25''N and 
122 deg.23'02''W, and along the shoreline back to the beginning point. 
Also, the lighted platform positioned approximately 1000 yards 
northeast of the airport shoreline is surrounded by a circular security 
zone with a radius extending 100 yards from the center point, 
37 deg.38'12''N and 122 deg.21'40''W.

[[Page 44569]]

    (2) Oakland International Airport Security Zone. This security zone 
extends approximately 200 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.43'35''N and longitude 
122 deg.15'00''W; thence to 37 deg.43'40''N and 122 deg.15'05''W; 
thence to 37 deg.43'34''N and 122 deg.15'12''W; thence to 
37 deg.43'24''N and 122 deg.15'11''W; thence to 37 deg.41'54''N and 
122 deg.13'05''W; thence to 37 deg.41'51''N and 122 deg.12'48''W; 
thence to 37 deg.41'53''N and 122 deg.12'44''W; thence to 
37 deg.41'35''N and 122 deg.12'18''W; thence to 37 deg.41'46''N and 
122 deg.12'08''W; thence to 37 deg.42'03''N and 122 deg.12'34''W; 
thence to 37 deg.42'08''N and 122 deg.12'32''W; thence to 
37 deg.42'31''N and 122 deg.12'35''W; thence to 37 deg.42'35''N and 
122 deg.12'30''W; thence to 37 deg.42'40''N and 122 deg.12'06''W, and 
along the shoreline back to the beginning point.
    (b) Effective period. This section is in effect from 5 p.m. (PDT) 
on June 21, 2002 to 4:59 p.m. (PST) on December 21, 2002. If the need 
for these security zones ends before the scheduled 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, his designated 
representative or the official patrol consisting of Coast Guard 
commissioned, warrant or petty officers onboard vessels and patrol 
craft of the Coast Guard or of any government agency or entity that has 
agreed to assist the Coast Guard in the performance of its duties. All 
other general regulations of Sec. 165.33 of this part apply in the 
security zones established by this temporary section.

    Dated: June 21, 2002.
L.L. Hereth,
Captain, Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 02-16753 Filed 7-2-02; 8:45 am]
BILLING CODE 4910-15-P