[Federal Register Volume 68, Number 136 (Wednesday, July 16, 2003)]
[Rules and Regulations]
[Pages 41922-41925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17986]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-013]
RIN 1625-AA00


Security Zone; Coronado Bay Bridge, San Diego, CA.

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; change in effective period.

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SUMMARY: The Coast Guard is revising the effective period of the 
temporary

[[Page 41923]]

security zone 25 yards around all piers, abutments, fenders and pilings 
of the Coronado Bay Bridge. These temporary security zones are needed 
for national security reasons to protect the public ports from 
potential subversive actions. Persons and vessels are prohibited from 
entering into, transiting through, loitering, or anchoring within this 
security zone unless authorized by the Captain of the Port, or his 
designated representative.

DATES: The amendment to Sec.  165.T11-032 in this rule is effective 
June 21, 2003. Section 165.T11-032, added at 68 FR 18123, April 15, 
2003, effective from 12:01 a.m. (PST) on March 22, 2003, until 11:59 
p.m. (PDT) on June 22, 2003, as amended in this rule, is extended in 
effect to 11:59 p.m. (PDT) on September 22, 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 03-013] and are available for 
inspection or copying at Marine Safety Office San Diego, 2716 North 
Harbor Drive, San Diego, CA 92101-1064 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) 683-6494

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On April 15, 2003, we published a temporary final rule (TFR) 
establishing the 25-yard security zone around the Coronado Bay Bridge. 
The published rule was entitled Security Zones; San Diego Bay, San 
Diego, CA in the Federal Register (68 FR 18123) under 33 CFR 165.T11-
032. It has been in effect since March 22, 2003, and is set to expire 
11:59 p.m. (PDT) on June 22, 2003.
    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 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). Under the current threat level condition, 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 Coronado Bridge. Additionally, the measures 
contemplated by this rule are intended to prevent future terrorist 
attacks against individuals on or near the Coronado Bridge. Any delay 
in the effective date of this TFR is impractical and contrary to the 
public interest.
    The Coast Guard will be publishing a NPRM to establish permanent 
security zones that are temporarily effective under this rule. This 
revision preserves the status quo within the Ports while permanent 
regulations are 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 rule effective less than 30 days after publication in the Federal 
Register.

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 
the war with Iraq have made it prudent to U.S. ports to be on 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 Coronado Bridge would have on the 
public interest, the Coast Guard is establishing security zones around 
the Coronado 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.
    A temporary security zone was created and published on April 15, 
2003 in the Federal Register (Vol. 68, No. 72, 18123). The Coast 
Guard's intention during this time was to draft a Notice of Proposed 
Rulemaking to create a permanent security zone around the Coronado Bay 
Bridge. This temporary security zone is intended to give the Coast 
Guard additional time to complete the Notice of Proposed Rulemaking and 
maintain a security zone around the bridge until a permanent regulation 
can be completed.

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 
Coronado Bridge, San Diego 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

[[Page 41924]]

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 southern San Diego Bay and Chula 
Vista 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 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 (Public Law 104-121), we offered 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 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it 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 M16475.1D, this rule is

[[Page 41925]]

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), 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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.

0
2. Revise Sec.  165.T11-032 to read as follows:


Sec.  165.T11-032  Security Zone: Coronado Bay Bridge, San Diego, CA.

    (a) Location. All waters extending from the surface to the sea 
floor, 25 yards around all piers, abutments, fenders and pilings of the 
Coronado Bay Bridge on the navigable waters of San Diego Bay. This 
security zone will not restrict the main navigational channel and 
vessels will not be restricted from transiting through the channel.
    (b) Regulations. In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, loitering, or 
anchoring within this security zone by all persons and vessels is 
prohibited, unless authorized by the Captain of the Port, or his 
designated representative. Mariners are advised that the security zones 
will not restrict the main navigational channel and transit through the 
channel is not prohibited. Mariners requesting permission to transit 
through the security zone may request authorization to do so from 
Captain of the Port or his designated representative. The Coast Guard 
can be contacted on San Diego Bay via VHF-FM channel 16.
    (c) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.
    (d) Effective period. This section is effective from 11:59 p.m. 
(PDT) on March 22, 2003, until 11:59 p.m. (PST) on September 22, 2003. 
If the Coast Guard terminates enforcement of this security zone prior 
to the scheduled termination time, the Captain of the Port will cease 
enforcement of this safety zone and will announce that fact via 
Broadcast Notice to Mariners.

    Dated: June 13, 2003.
Robert E. McFarland,
Lieutenant Commander, U.S. Coast Guard, Acting Captain of the Port, San 
Diego.
[FR Doc. 03-17986 Filed 7-15-03; 8:45 am]
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