[Federal Register Volume 68, Number 88 (Wednesday, May 7, 2003)]
[Proposed Rules]
[Pages 24408-24410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11296]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-011]
RIN 1625-AA00


Security Zone; Waters Adjacent to National City Marine Terminal

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent security 
zone in the waters adjacent to the National City Marine Terminal in San 
Diego Bay, San Diego, CA. This action is needed to protect the U.S. 
Naval vessel(s) and their crew(s) during military outload evolutions at 
the National City Marine Terminal from sabotage, or other subversive 
acts, accidents, criminal actions or other causes of a similar nature. 
Entry, transit, or anchoring in this zone is prohibited unless 
authorized by the Captain of the Port (COTP) San Diego, or his 
designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before July 7, 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. The Port Operations Department maintains the public 
docket for this rulemaking. 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 Marine Safety Office San Diego, 
Port Operations Department, 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: Petty Officer Austin Murai, USCG, c/o 
U.S Coast Guard Captain of the Port, telephone (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking 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 03-011), 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 proposed rule in 
view of them.
    In our final rule, we will include a concise general statement of 
the comments received and identify any changes from the proposed rule 
based on the comments. If as we anticipate, we make the final rule 
effective less than 30 days after publication in the Federal Register, 
we will explain our good cause for doing so as required by 5 U.S.C. 
553(d)(3).

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 this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    The United States Navy conducts military outload operations from 
the National City Marine Terminal. These operations involve the loading 
of men and equipment onboard USNS ships and other Naval vessels for the 
furtherance of our national security. These onload evolutions are often 
short fused and are directed at a moments notice. In an effort to 
protect the onload

[[Page 24409]]

evolutions and provide adequate notice to the public, the Captain of 
the Port of San Diego proposes to establish a permanent security zone 
around the National City Marine Terminal which will be enforced when 
such a military onload evolution occurs.
    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 proposes to establish a permanent 
security zone in the navigable waters of the United States adjacent to 
the National City Marine Terminal. The action proposed under this rule 
is necessary to protect the U.S. Naval vessel(s) and their crew(s) 
during these military outload evolutions at the National City Marine 
Terminal from sabotage, or other subversive acts, accidents, criminal 
actions or other causes of a similar nature.

Discussion of Proposed Rule

    Due to National Security interests, the implementation of this 
security zone 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 the U.S. Naval vessel(s), their crew(s), 
adjoining areas, and the public.
    The military outload evolutions involve the transfer of military 
equipment from a shore side staging area to various Military Sealift 
Command vessels and other contracted vessels. The security zone will 
accompany other security measures implemented at the National City 
Marine Terminal waterfront facility.
    Due to complex planning, national security reasons, and 
coordination with all military schedules, information regarding the 
precise location and date of the military outloads will not be 
circulated, however, prior to any outload evolution, the public will be 
notified that the security zone is in effect and will be enforced. The 
enforcement of the security zone will be announced via broadcast notice 
to mariners, local notice to mariners, or by any other means that is 
deemed appropriate.
    This security zone is established pursuant to the authority of the 
Magnuson Act regulations promulgated by the President under 50 U.S.C. 
191, including subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code 
of Federal Regulations. Vessels or persons violating this section are 
subject to he penalties set forth in 50 U.S.C. 192 which include 
seizure and forfeiture of the vessel, a monetary penalty of not more 
than $12,500, and imprisonment for not more than 10 years.

Regulatory Evaluation

    This proposed 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 zone, the effect 
of this regulation will not be significant because: (i) The zone 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.
    Most of the entities likely to be affected 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 vessel(s), their 
crew(s), and the public. Accordingly, full regulatory evaluation under 
paragraph 10(e) of the regulatory policies and procedures of the DHS is 
unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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. Most of the traffic in this area is recreational traffic and 
sightseers. The economic impact is minimal by having them gain 
permission to transit through the zone from the COTP or his 
representative. The Coast Guard has coordinated with known private 
business owners in an effort to reduce any substantial impact on 
business.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule 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 this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offer to assist small 
entities in understanding the rule so that they may better evaluate its 
effects on them and participate in the rulemaking process. If your 
small business or organization is affected by this rule or if you have 
questions concerning its provisions or options for compliance, please 
contact Lieutenant Commander Rick Sorrell, Chief of Port Operations, 
U.S. Coast Guard Marine 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 proposed rule 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 this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

[[Page 24410]]

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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is 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

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it 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 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 proposed 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'' and checklist are 
available in the docket for inspection or copying where indicated under 
ADDRESSES. Comments on this section will be considered before we make 
the final decision on whether the rule should be categorically excluded 
from further environmental review.

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 proposes 
to amend 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; Department of Homeland Security 
Delegation No. 0170.

    2. Add Sec.  165.1109 to read as follows:


Sec.  165.1109  Security Zone; National City Marine Terminal, San 
Diego, CA.

    (a) Location. The security zone consists of the navigable waters 
surrounding the National City Marine Terminal and encompassing 
Sweetwater Channel. The limits of this security zone are more 
specifically defined as the area enclosed by the following points: 
starting on shore at 32[deg]39'25'' N 117[deg]07'15'' W, then extending 
northerly to 32[deg]39'32'' N 117[deg]07'16'' W, then extending 
westerly to 32[deg]39'29'' N 117[deg]07'36'' W, then southerly to 
32[deg]39'05'' N 117[deg]07'34'' W, and then easterly to shore at 
32[deg]39'06'' N 117[deg]07'14.5'' W. All coordinates are North 
American Datum 1983.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into, transit through, or anchoring 
within the security zone by all vessels is prohibited during military 
outloads, 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 zone established by this 
section.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port on VHF channel 16 or VHF channel 21A to 
seek permission to transit the area. Additionally, the COTP 
representative may be reached at (619) 683-6470 ext 2. If permission is 
granted, all persons and vessels must comply with the instructions of 
the Captain of the Port or his or her designated representatives.
    (c) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the San Diego Harbor Police.
    (d) Notice. Enforcement of the security zone will be announced via 
broadcast notice to mariners, local notice to mariners, or by any other 
means that is deemed appropriate.
    (e) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.

    Dated: April 17, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 03-11296 Filed 5-6-03; 8:45 am]
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