[Federal Register Volume 68, Number 53 (Wednesday, March 19, 2003)]
[Rules and Regulations]
[Pages 13228-13231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6630]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-003]
RIN 1625-AA00


Security Zones; San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing fixed security zones extending 
25 yards in the U.S. navigable waters around all piers, abutments, 
fenders and pilings of the Golden Gate Bridge and the San Francisco-
Oakland Bay Bridge, San Francisco Bay, California. These security zones 
are needed for national security reasons to protect the public and 
ports from potential subversive acts. Entry into these security zones 
is prohibited, unless doing so is necessary for safe navigation, to 
conduct official business such as scheduled maintenance or retrofit 
operations, or unless specifically authorized by the Captain of the 
Port San Francisco Bay, or his designated representative.

DATES: This regulation is effective from 11 a.m. PST on February 13, 
2003 to 11:59 p.m. PDT on September 30, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket [COTP San Francisco Bay 03-003] and are 
available for inspection or copying at Coast Guard Marine Safety Office 
San Francisco Bay, Coast Guard Island, Alameda, California, 94501, 
between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

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

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), for the reasons set forth below, 
the Coast Guard finds that good cause exists for not publishing an 
NPRM. Also, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good 
cause exists for making this rule effective less than 30 days after 
publication in the Federal Register because the threat of maritime 
attacks is real as evidenced by the October 2002 attack of a tank 
vessel off the coast of

[[Page 13229]]

Yemen and the continuing threat to U.S. assets as described in the 
President's finding in Executive Order 13273 of August 21, 2002 (67 FR 
56215, September 3, 2002) that the security of the U.S. is endangered 
by the September, 11, 2001 attacks and that such disturbances continue 
to endanger the international relations of the United States. See also 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of 
the National Emergency With Respect To Persons Who Commit, Threaten To 
Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). 
Moreover, the Secretary of the Department of Homeland Security and the 
Attorney General recently elevated the Threat Level to Orange--High 
Condition. A High Condition is declared when there is a high risk of 
terrorist attacks. As a result, many agencies, like the Coast Guard, 
that will be a part of the new Department of Homeland Security on March 
1, are taking additional steps to increase their protective measures. 
Under High Condition, among other things, federal agencies are to 
consider the following protective measures: Coordinate necessary 
security efforts with federal, state, and local law enforcement 
agencies, National Guard or other security and armed forces; and 
Restrict access to a threatened facility to essential personnel only. 
As a result, a heightened level of security has been established around 
the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge. 
Additionally, the measures contemplated by this rule are intended to 
prevent future terrorist attacks against individuals on or near the 
Golden Gate Bridge and the San Francisco-Oakland Bay Bridge. Any delay 
in the effective date of this TFR is impractical and contrary to the 
public interest.

Background and Purpose

    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan and 
growing tensions in Iraq have made it prudent to U.S. ports to be on a 
higher state of alert because the Al-Qaeda organization and other 
similar organizations have declared an ongoing intention to conduct 
armed attacks on U.S. interests worldwide. 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.
    In this particular rulemaking, to address the aforementioned 
security concerns, and to take steps to prevent the catastrophic impact 
that a terrorist attack against the Golden Gate Bridge and the San 
Francisco-Oakland Bay Bridge would have on the public interest, the 
Coast Guard is establishing security zones around the Golden Gate 
Bridge and the San Francisco-Oakland Bay Bridge. These security zones 
help the Coast Guard to prevent vessels or persons from engaging in 
terrorist actions against these bridges. Due to these heightened 
security concerns, and the catastrophic impact a terrorist attack on 
these bridges would have on the public, the transportation system, and 
surrounding areas and communities, security zones are prudent for these 
structures.

Discussion of Rule

    In this temporary rule, the Coast Guard is establishing fixed 
security zones extending from the surface to the sea floor, 25 yards in 
the waters around all piers, abutments, fenders and pilings of the 
Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San 
Francisco Bay, California. Entry into these security zones is 
prohibited, unless doing so is necessary for safe navigation, or to 
conduct official business such as scheduled maintenance or retrofit 
operations. Vessels and people may be allowed to enter an established 
security zone on a case-by-case basis with authorization from the 
Captain of the Port.
    Vessels or persons violating this section will be subject to the 
penalties set forth in 33 U.S.C. 1232. 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.
    Coast Guard personnel will enforce this regulation and the Captain 
of the Port may be assisted by other Federal, State, or local agencies 
in the patrol and enforcement of the regulation. This regulation is 
proposed under the authority of 33 U.S.C. 1226 in addition to the 
authority contained in 33 U.S.C. 1231.

Regulatory Evaluation

    This 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).
    Although this regulation restricts access to the zones, the effect 
of this regulation will not be significant because: (i) The zones will 
encompass only a small portion of the waterway; (ii) vessels will be 
able to pass safely around the zones; and (iii) vessels may be allowed 
to enter these zones on a case-by-case basis with permission of the 
Captain of the Port, or his designated representative.
    The sizes of the zones are the minimum necessary to provide 
adequate protection for the bridges, vessels operating in the vicinity, 
their crews and passengers, adjoining areas and the public. The 
entities most likely to be affected are commercial vessels transiting 
the main ship channel en route the San Francisco Bay and Delta ports 
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 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 rule will 
not have a significant economic impact on a substantial number of small 
entities. The security zones will not have a significant economic 
impact on a substantial number of small entities for several reasons: 
small vessel traffic can pass safely around the security zones and 
vessels engaged in recreational

[[Page 13230]]

activities, sightseeing and commercial fishing have ample space outside 
of the security zones to engage in these activities. Small entities and 
the maritime public will be advised of these security zones via public 
notice to mariners.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer 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 the 
rule will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
    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 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 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 a security 
zone. 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), Reports and record 
keeping 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 Sec.  165.T11-078 to read as follows:


Sec.  165.T11-078  Security Zones; Golden Gate Bridge and the San 
Francisco-Oakland Bay Bridge, San Francisco Bay, California.

    (a) Location. All waters extending from the surface to the sea 
floor, 25 yards around all piers, abutments, fenders and pilings of the 
Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San 
Francisco Bay, California.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into these security zones is 
prohibited, unless doing so is necessary for safe navigation, to 
conduct official business such as scheduled maintenance or retrofit 
operations, or unless specifically authorized by the 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 510-437-3073 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 or her designated 
representative.
    (d) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.
    (e) Enforcement. All persons and vessels shall comply with the 
instructions of the Coast Guard Captain of the Port or the designated 
on-scene patrol personnel. Patrol personnel comprise commissioned, 
warrant, and petty officers of the Coast Guard onboard Coast Guard, 
Coast Guard Auxiliary, local, state, and federal law enforcement 
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by

[[Page 13231]]

siren, radio, flashing light, or other means, the operator of a vessel 
shall proceed as directed.
    (f) Effective Dates. This section becomes effective at 11 a.m. PST 
on February 13, 2003, and will terminate at 11:59 p.m. PDT on September 
30, 2003.

    Dated: February 13, 2003.
Steven J. Boyle,
Commander, Coast Guard, Acting Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-6630 Filed 3-18-03; 8:45 am]
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