[Federal Register Volume 68, Number 29 (Wednesday, February 12, 2003)]
[Rules and Regulations]
[Pages 7078-7080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3462]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego 03-007]
RIN 2115-AA97


Security Zone; San Diego Bay

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is temporarily expanding the geographical 
boundaries of the permanent security zone at Naval Base, San Diego, 
California (33 CFR 165.1101), extending it by approximately 80 feet 
seaward of the pier heads at the request of the U.S. Navy. The 
additional size will accommodate the Navy's placement of anti-small 
boat barrier booms perpendicular to the piers. Entry into this zone is 
prohibited unless authorized by the Captain of the Port (COTP) San 
Diego, or his designated representative.

DATES: This rule is effective from 11:59 p.m. on February 11, 2003 to 
11:59 p.m. on May 11, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP San Diego 03-007] and are available 
for inspection or copying at U.S. Coast Guard Marine Safety Office San 
Diego, 2716 N. Harbor Drive, San Diego California 92101, between 9 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Rick Sorrell, 
Chief of Port Operations, Marine Safety Office San Diego at (619) 683-
6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
temporary regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds 
that good cause exists for not publishing an NPRM. While the Navy has 
been implementing many force protection measures since the attack on 
the U.S.S. Cole and the attacks of September 11, 2001, the Chief of 
Naval Operations has recently emphasized the need for the expanded use 
of anti-small boat barrier booms around Navy vessels in U.S. ports to 
protect against attacks similar to the one launched against the U.S.S. 
Cole. In addition, the Office of Homeland Security through its Web site 
has described the current nationwide threat level as ``Elevated.'' 
According to the Office of Homeland Security, an Elevated Condition is 
declared when there is a significant risk of terrorist attacks. The 
Coast Guard believes that issuing an NPRM and thereby delaying 
implementation of the expanded security zone would be against the 
public interest during this elevated state of alert.
    Although we had anticipated using the effective period of the 
current temporary final rule to engage in notice and comment 
rulemaking, the Captain of the Port has decided to extend the effective 
period for 3 months to allow sufficient time to properly develop 
permanent regulations tailored to the present and foreseeable security 
environment. This extension preserves the status quo within the Port 
while a permanent rule is developed.
    For the reasons stated in the paragraphs above under 5 U.S.C. 553 
(d)(3), the Coast Guard also finds that good cause exists for making 
this regulation effective less than 30 days after publication in the 
Federal Register. Any delay in implementing this rule would be contrary 
to the public interest since immediate action is necessary to ensure 
the protection of the Naval vessels, their crew, and national security.
    Furthermore, in order to protect the interests of national 
security, the Coast Guard is promulgating this temporary regulation to 
provide for the safety and security of U.S. Naval vessels in the 
navigable waters of the United States. As a result, the establishment 
and enforcement of this security zone is a function directly involved 
in and necessary to military operations. Accordingly, based on the 
military function exception set forth in the Administrative Procedure 
Act, 5 U.S.C. 553(a)(1), notice and comment rule-making and advance 
publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for 
this regulation.
    The Coast Guard has plans to make the expansion of the security 
zone permanent. Towards that end, the Coast Guard will initiate notice 
and comment rulemaking before issuing any final rule.

Background and Purpose

    The Coast Guard is expanding the security zone (33 CFR 165.1101) by 
temporarily extending it approximately 80 feet seaward of the pier 
heads to allow the U.S. Navy to deploy anti-small boat barrier booms 
perpendicular to the piers. The expansion of this security zone is 
needed to ensure the physical protection of naval vessels moored in the 
area by providing adequate standoff distance. It will also prevent 
recreational and commercial craft from interfering with military 
operations involving all naval vessels home-ported at 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. In addition, the Navy has been reviewing 
all aspects of its anti-terrorism and force protection posture in 
response to the attack on the USS COLE and the terrorist attacks of 
September 11, 2001. The expansion of this security zone will 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 or Commander, Navy Region Southwest. Vessels or persons violating 
this section would be subject to the penalties set forth in 50 U.S.C. 
192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a 
monetary penalty of not more than $250,000, and imprisonment for not 
more than 10 years. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the U.S. Navy.

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

[[Page 7079]]

Transportation (DOT) (44 FR 11040, February 26, 1979).
    The implementation of this security zone is necessary for the 
protection of the United States' national security interests. The size 
of the zone is the minimum necessary to allow for safe placement of the 
anti-small boat booms while providing 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 in close proximity to the 
Naval Base. Any hardships experienced by persons or vessels wishing to 
approach the Naval Base are considered minimal compared to the national 
interest in protecting U.S. Naval vessels, their crews, and the public. 
The expansion of the security zone will not impact navigation in the 
shipping channel.

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.
    This security zone will not have a significant impact on a 
substantial number of small entities because these security zones are 
only closing small portions of the navigable waters adjacent to Naval 
Base, San Diego, California. In addition, there are no small entities 
shoreward of the security zone. For these reasons, and the ones 
discussed in the previous section, 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

    In accordance with 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 
can 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 Commander Rick 
Sorrell, Chief of Port Operations, Marine Safety Office San Diego, at 
(619) 683-6495.
    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 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.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. We invite 
your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

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, which temporarily modifies an 
existing security zone, is categorically excluded from further 
environmental documentation. 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 record 
keeping requirements, Security Measures, Waterways.

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

[[Page 7080]]

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.


Sec.  165.1101  [suspended]

    2. Temporarily suspend Sec.  165.1101 from 11:59 p.m. on February 
11, 2003 to 11:59 p.m. on May 11, 2003.

    3. Add new temporary Sec.  165.T11-047 to read as follows:


Sec.  165.T11-047  Security Zone: San Diego Bay, CA.

    (a) Location. The following area is a security zone: the water area 
within Naval Base, 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]40'37.8N, 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); to 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 Base to the 
place of beginning.
    (b) Effective Dates. This section is effective from 11:59 p.m. on 
February 11, 2003 to 11:59 p.m. on May 11, 2003.
    (c) Regulations. 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 or the 
Commander, Navy Region Southwest.
    (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 28, 2003.
Stephen P. Metruck,
Commander, Coast Guard, Captain of the Port, San Diego.
[FR Doc. 03-3462 Filed 2-11-03; 8:45 am]
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