[Federal Register Volume 68, Number 28 (Tuesday, February 11, 2003)]
[Proposed Rules]
[Pages 6844-6847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3263]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 03-010]
RIN 2115-AA97


Security Zones; San Diego Bay, CA

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to expand the geographical boundaries 
of the permanent security zones at Naval Base San Diego; Naval 
Submarine Base, San Diego; and Naval Base Coronado, California at the 
request of the U.S. Navy. Modification and expansion of these security 
zones is needed to ensure the physical protection of naval vessels 
moored within each zone by accommodating the Navy's placement of anti-
small boat barrier booms within the zones. Entry into these zones is 
prohibited unless authorized by the Captain of the Port (COTP); 
Commander, Naval Base San Diego; Commander, Naval Air Force, U.S. 
Pacific Fleet; Commander, Submarine Force, U.S. Pacific Fleet 
Representative, West Coast; Commander, Naval Base

[[Page 6845]]

Coronado; or the Commanding Officer, Naval Station, San Diego.

DATES: Comments and related material must reach the Coast Guard on or 
before April 14, 2003.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office San Diego, 2716 North Harbor Drive, San Diego, 
California, 92101. Marine Safety Office San Diego, Port Operations 
Department maintains the public docket for these rulemakings. 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 Coast 
Guard Marine Safety Office San Diego, 2716 North Harbor Drive, San 
Diego, California, 92101, between 8 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:  Lieutenant Joseph Brown, Port Safety 
and Security, at (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in these rulemakings by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [COTP San 
Diego 03-010], 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 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 these 
proposed rules 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 Marine Safety Office San Diego at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid these rulemakings, we will hold one at 
a time and place announced by a separate notice in the Federal 
Register.

Background and Purpose

    On September 16th and 17th, 2002, the Coast Guard published three 
temporary final rules suspending 33 CFR 165.1101, 33 CFR 165.1103, and 
33 CFR 165.1104 and implementing temporary security zones at Naval Base 
San Diego, Naval Base Coronado, and Naval Submarine Base San Diego. See 
67 FR 58524, 67 FR 58526, and 67 FR 58333. Modified versions of these 
zones have been in place since 1998 and the Coast Guard has not 
received any comments during that time and no negative incidents have 
been reported.
    The U.S. Navy requested that Coast Guard implement these security 
zones in coordination with their installation of anti-small boat 
barrier booms at the three locations. If you would like to obtain 
information about the U.S. Navy's action, contact the Assistant Chief 
of Port Operations, Navy Region Southwest at 619-556-2400.
    The Coast Guard proposes to modify the security zones to allow the 
U.S. Navy to put anti-small boat barrier booms at Naval Base San Diego 
(33 CFR 165.1101); Naval Submarine Base, San Diego (33 CFR 165.1103); 
and Naval Base Coronado (33 CFR 165.1104). The modification and 
expansion of these security zones is needed to ensure the physical 
protection of naval vessels moored in the area by providing adequate 
stand-off distance. The Coast Guard's action supports the Navy's action 
and is limited to the expansion of the existing zones.
    The modification and expansion of these security zones will also 
prevent recreational and commercial craft from interfering with 
military operations involving all naval vessels home-ported at Naval 
Base Coronado, Naval Submarine Base San Diego, and Naval Base San 
Diego, and it will protect transiting recreational and commercial 
vessels, and their respective crews, from the navigational hazards 
posed by such military operations. It will also safeguard vessels and 
waterside facilities from destruction, loss, or injury from sabotage or 
other subversive acts, accidents, or other causes of a similar nature. 
Entry into, transit through, or anchoring within this security zone is 
prohibited unless authorized by the Captain of the Port San Diego; 
Commander, Naval Air Force, U.S. Pacific Fleet; Commander, Submarine 
Force, U.S. Pacific Fleet Representative, West Coast; Commander, U.S. 
Naval Base San Diego; Commander, Navy Region Southwest; Commanding 
Officer, Naval Station, San Diego; or Commander, Naval Base Coronado.

Discussion of Proposed Rule

    Specifically, the Coast Guard is expanding the security zone 
boundaries at the request of the U.S. Navy so that the U.S. Navy can 
install anti-small boat barrier booms.
    In its effort to thwart 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 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.
    Vessels or persons violating this section 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 $27,500 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, and a civil penalty 
of not more than $25,000 for each day of a continuing violation.
    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. This 
regulation is proposed under the authority of 33 U.S.C. 1226 in 
addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 
1231.

Regulatory Evaluation

    These proposed rules are not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866, Regulatory Planning and 
Review, and do 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 them under that Order. They

[[Page 6846]]

are not significant under the regulatory policies and procedures of the 
Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
    We expect the economic impact of these proposed rules to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT is unnecessary.
    Due to National Security interests, the implementation of these 
security zones is necessary for the protection of the United States and 
its people. The size of the zone is the minimum necessary to provide 
adequate protection for U.S. Naval vessels, their crews, adjoining 
areas, and the public. The entities most likely to be affected, if any, 
are pleasure craft engaged in recreational activities and sightseeing. 
Any hardships experienced by persons or vessels are considered minimal 
compared to the national interest in protecting U.S. Naval vessels, 
their crews, and the public.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether these proposed rules 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 these proposed 
rules would not have a significant economic impact on a substantial 
number of small entities because the expanded zones will still allow 
sufficient room for vessels to transit the channel unimpeded.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that these rules 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 these rules would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding these proposed rules so that they can better 
evaluate its effects on them and participate in the rulemakings. If the 
proposed rules would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LT Joseph Brown, 
Marine Safety Office San Diego at (619) 683-6495.

Collection of Information

    These proposed rules 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 these proposed 
rules under that Order and have determined that they do 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 these proposed rules would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    These proposed rules would not affect 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

    These proposed rules meet 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 these proposed rules under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. These rules are 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

    These proposed rules do not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because they 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. We 
invite your comments on how these proposed rules might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed these proposed rules under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that these are not a 
``significant energy action'' under that order because they are not a 
``significant regulatory action'' under Executive Order 12866 and are 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. They have not been designated by the 
Administrator of the Office of Information and Regulatory Affairs as 
significant energy actions. Therefore, they do not require a Statement 
of Energy Effects under Executive Order 13211.

Environment

    We have considered the environmental impact of these proposed rules 
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, these rules are categorically excluded from 
further environmental documentation because our action is limited to 
the expansion of existing security zones. The U.S. Navy has separately 
considered the impact of their proposed project including the placement 
of anti-small boat barrier booms. While we reviewed the Navy's 
environmental documentation, our analysis pertains solely to the 
expanded placement of the small markers designating the security zones 
already in the waterway. ``Categorical Exclusion Determinations'' 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.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

[[Page 6847]]

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. Revise Sec.  165.1101 to read as follows:


Sec.  165.1101  Security Zone: San Diego Bay, CA.

    (a) Location. The following area is a security zone: the water area 
within Naval Station, San Diego enclosed by the following points: 
Beginning at 32[deg]41'16.5'' N, 117[deg]08'01'' W (Point A); thence 
running southwesterly to 32[deg]41'02.5'' N, 117[deg]08'08.5'' W (Point 
B); to 32[deg]40'55.0'' N 117[deg]08'00.0'' W (Point C); to 32[deg]40' 
49.5'' N 117[deg]07'55.5'' W (Point D); to 32[deg]40'44.6'' N, 
117[deg]07'49.3'' W (Point E); to 32[deg]40'37.8 N 117[deg]07'43.2'' W, 
(Point F); to 32[deg]40'30.9'' N, 117[deg]07'39.0'' W (Point G); 
32[deg]40'24.5'' N, 117[deg]07'35.0'' W (Point H); to 32[deg]40'17.2'' 
N, 117[deg]07'30.8'' W (Point I); to 32[deg]40'10.6'' N, 
117[deg]07'30.5'' W (Point J); to 32[deg]39'59.0'' N, 117[deg]07'29.0'' 
W (Point K); to 32[deg]39'49.8'' N, 117[deg]07'27.2'' W (Point L); to 
32[deg]39'43.0'' N, 117[deg]07'25.5'' W (Point M); 32[deg]39'36.5'' N, 
117[deg]07'24.2'' W, (Point N); thence running easterly to 
32[deg]39'38.5'' N, 117[deg]07'06.5'' W (Point O); thence running 
generally northwesterly along the shoreline of the Naval Station to the 
place of beginning. All coordinates referenced use datum: NAD 1983.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec. 165.33 of this part, entry into the area of this zone is 
prohibited unless authorized by the Captain of the Port San Diego; 
Commander, Naval Base San Diego; Commander, Navy Region Southwest; or 
the Commanding Officer, Naval Station, San Diego.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 619-683-6495 or on 
VHF 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 or her designated 
representative.
    (c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the U. S. Navy.
    3. Revise [deg]165.1103 to read as follows:


Sec.  165.1103  Security Zone: San Diego Bay, CA.

    (a) Location. The following area is a security zone: The water 
adjacent to the Naval Submarine Base, San Diego commencing on a point 
on the shoreline of Ballast Point, at 32[deg]41'11.2'' N, 
117[deg]13'57.0'' W (Point A), thence northerly to 32[deg]41'31.8'' N, 
117[deg]14'00.6'' W (Point B), thence westerly to 32[deg]41'32.7'' N, 
117[deg]14'03.2'' W (Point C), thence southwesterly to 32[deg]41'30.5'' 
N, 117[deg]14'17.5'' W (Point D), thence generally southeasterly along 
the shoreline of the Naval Submarine Base to the point of beginning, 
(Point A). All coordinates referenced use datum: NAD 1983.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into the area of this zone is 
prohibited unless authorized by the Captain of the Port San Diego; 
Commander, Submarine Force, U.S. Pacific Fleet Representative, West 
Coast; or Commander, Naval Base San Diego.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 619-683-6495 or on 
VHF 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 or her designated 
representative.
    (c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the U.S. Navy.
    4. Revise Sec.  165.1104 to read as follows:


Sec.  165.1104  Security Zone: San Diego Bay, CA.

    (a) Location. The following area is a security zone: on the waters 
along the northern shoreline of Naval Base Coronado, the area enclosed 
by the following points: Beginning at 32[deg]42'53.0''N, 
117[deg]11'45.0'' W (Point A); thence running northerly to 
32[deg]42'55.5''N, 117[deg]11'45.0''W, (Point B); thence running 
easterly to 32[deg]42'57.0''N, 117[deg]11'31.0''W, (Point C); thence 
southeasterly to 32[deg]42'42.0''N, 117[deg]11'04.0''W (Point D); 
thence southeasterly to 32[deg]42'21.0''N, 117[deg]10'47.0''W (Point E) 
thence running southerly to 32 [deg]42'13.0'' N, 117 [deg]10'51.0'' W 
(Point F); thence running generally northwesterly along the shoreline 
of Naval Base Coronado to the place of beginning. All coordinates 
referenced use datum: NAD 1983.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33, entry into the area of this zone is prohibited unless 
authorized by the Captain of the Port San Diego; Commander, Naval Air 
Force, U.S. Pacific Fleet; Commander, Navy Region Southwest; or 
Commanding Officer, Naval Base Coronado.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 619-683-6495 or on 
VHF 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 or her designated 
representative.
    (c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the U.S. Navy.

    Dated: January 23, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 03-3263 Filed 2-10-03; 8:45 am]
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