[Federal Register Volume 68, Number 91 (Monday, May 12, 2003)]
[Rules and Regulations]
[Pages 25288-25291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11166]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-010]
RIN 1625-AA00 [Formerly RIN 2115-AA97]


Security Zones; San Diego Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is expanding 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) San Diego; 
Commander, Naval Base San Diego; Commander, Naval Base Point Loma; 
Commander, Naval Base Coronado; or Commander, Navy Region Southwest.

DATES: The suspension of 33 CFR 165.1101, 165.1103, and 165.1104 
(effective from 11:59 p.m. on February 11, 2003 to 11:59 p.m. on May 
12, 2003, published in the Federal Register at 68 FR 7073-7080, on 
February 12, 2003) is lifted effective 11:59 p.m. on April 14, 2003. 
This rule is effective on April 15, 2003.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket [COTP San Diego 03-010] and are available for 
inspection or copying at Coast Guard Marine Safety Office San Diego, 
2716 North Harbor Drive, San Diego, California, 92101. Marine Safety 
Office San Diego, Port Operations Department 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:

Regulatory Information

    On February 11, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled [Security Zones; San Diego Bay, CA] in the Federal 
Register (68 FR 6844). We received 0 letters commenting on the proposed 
rule. No public hearing was requested, and none was held.
    Under 5 U.S.C. 553(d)(3), good cause exists for making this rule 
effective less than 30 days after publication in the Federal Register. 
The Maritime Administration (MARAD) recently issued MARAD Advisory 03-
03 (182100Z MAR 03) informing operators of maritime interests of 
increased threat possibilities to vessels and facilities and a higher 
risk of terrorist attacks to the maritime community in the United 
States. Further, national security and intelligence officials warn that 
future terrorist attacks against United States interests are likely. 
The measures contemplated by the rule are intended to prevent 
waterborne acts of sabotage or terrorism, which terrorists have 
demonstrated a capability to carry out. Any delay in making this 
regulation effective would be contrary to the public interest because 
immediate action is necessary to protect U.S. naval interests against 
the possible loss of life, injury, or damage to property.

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 the 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 is modifying 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 standoff 
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 Base San Diego; Commander, Naval Base Point Loma; 
Commander, Naval Base Coronado; or Commander, Navy Region Southwest.

Discussion of 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

[[Page 25289]]

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 issued 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 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 are not ``significant'' under 
the regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    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 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 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 rules so that they can better evaluate 
its effects on them and participate in the rulemakings. If the 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.
    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 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

[[Page 25290]]

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 these rules and 
concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.1D, 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. A final ``Environmental Analysis Check List'' 
and a final ``Categorical Exclusion Determination'' are available in 
the docket 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.

0
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

0
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.


Sec.  165.T11-047  [Removed]

0
2. Remove 165.T11-047.
0
3. 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; or Commander, Navy Region Southwest.
    (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.


Sec.  165.T11-031  [Removed]

0
4. Remove Sec.  165.T11-031.
0
5. Revise Sec.  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, Naval Base Point Loma; or Commander, Navy Region Southwest.
    (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.


Sec.  165.T11-049  [Removed]

0
6. Remove Sec.  165.T11-049.
0
7. Revise 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 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 Coronado, or Commander, Navy Region Southwest.
    (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.


[[Page 25291]]


    Dated: April 15, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 03-11166 Filed 5-9-03; 8:45 am]
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