[Federal Register Volume 68, Number 186 (Thursday, September 25, 2003)]
[Rules and Regulations]
[Pages 55312-55314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23771]


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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; change in effective period.

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SUMMARY: The Coast Guard is revising the effective period of the 
temporary 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: The amendment to 33 CFR 165.T11-078(f) in this rule is effective 
September 30, 2003. Section 165.T11-078, added at 68 FR 13230, March 
19, 2003, effective from 11 a.m. PST on February 13, 2003, to 11:59 
p.m. PDT on September 30, 2003, as amended in this rule, is extended in 
effect to 11:59 p.m. PST on March 31, 2004.

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 Doug Ebbers, Waterways 
Branch U.S. Coast Guard Marine Safety Office San Francisco Bay, at 
(510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 19, 2003, we published a temporary final rule (TFR) for 
the Golden Gate and San Francisco-Oakland Bay bridges entitled 
``Security Zones; San Francisco Bay, CA'' in the Federal Register (68 
FR 13228) under 33 CFR 165.T11-078. It has been in effect since 
February 13, 2003, and is set to expire 11:59 p.m. PDT on September 30, 
2003.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. In addition, 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, for the following reasons. 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, found at Executive Order 13273 of August 21, 
2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is 
endangered as evidenced 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). Additionally, a Maritime Advisory was issued to: 
Operators of U.S. Flag and Effective U.S. controlled Vessels and other 
Maritime Interests, detailing the current threat of attack, MARAD 02-07 
(October 10, 2002). Consequently, a heightened level of security has 
been established around all high visibility targets in San Francisco 
Bay and Delta ports. The measures contemplated by this rule are 
intended to prevent future terrorist attacks against individuals and 
facilities on or adjacent to the Golden Gate or San Francisco-Oakland 
Bay bridges. Any delay in the effective date of this TFR is impractical 
and contrary to the public interest.
    The original temporary final rule was urgently required to prevent 
possible terrorist strikes against the United States and more 
specifically the people, waterways, and properties on and near the 
Golden Gate or San Francisco-Oakland Bay bridges. It was anticipated 
that we would assess the security environment at the end of the 
enforcement period to determine whether continuing security precautions 
were required and, if so, propose regulations responsive to existing 
conditions. We have determined that the need for continued security 
regulations exists.
    The measures contemplated by this extension to the original 
temporary final rule are intended to facilitate ongoing response 
efforts and prevent future terrorist attack. The Coast Guard will 
utilize the extended enforcement period created by this TFR to confer 
with the bridge owners to determine if permanent fixed security zones 
around all piers, abutments, fenders and pilings of the Golden Gate 
Bridge and the San Francisco-Oakland Bay Bridge are appropriate. If a 
threat assessment confirms the need for permanent zones, we will 
publish a notice of proposed rulemaking (NPRM) that will allow for a 
public comment period and develop permanent regulations tailored to the 
present and foreseeable security environment with the Captain of the 
Port (COTP) San Francisco Bay. This

[[Page 55313]]

revision preserves the status quo within the Ports while threat 
assessments are conducted and--if it is determined they are necessary--
permanent regulations are developed.

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 
Iraq have made it prudent for 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. 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.
    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 or the San 
Francisco-Oakland Bay Bridge would have on the public, the Coast Guard 
is revising the enforcement period of the temporary 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 help the Coast Guard to prevent vessels or persons from 
engaging in terrorist actions against these two bridges.
    As of today, the need for security zones around the Golden Gate 
Bridge and the San Francisco-Oakland Bay Bridge still exists. This 
temporary final rule will extend the enforcement period of security 
zones that were set to expire September 30, 2003, for and additional 6 
months. The amended effective dates will be from September 30, 2003, to 
March 31, 2004. This period will allow the bridge owners to conduct a 
threat assessment to determine if permanent security zones are 
appropriate. In addition, if permanent security zones are deemed 
appropriate, this period will allow the Coast Guard time to publish a 
notice of proposed rulemaking (NPRM) in the Federal Register, which 
will include a public comment period, and for a final rule to be put 
into effect without there being an interruption in the protection 
provided by these security zones.

Discussion of Rule

    On March 19, 2003, we published the temporary final rule [COTP San 
Francisco Bay 03-003] titled ``Security Zones; San Francisco Bay, CA'' 
in the Federal Register (68 FR 13228). That rule established 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.
    The Coast Guard will utilize the extended enforcement period of 
these security zones to work with bridge owners to determine if 
permanent security zones are appropriate and, if so, to engage in 
notice-and-comment rulemaking to develop permanent regulations tailored 
to the present and foreseeable security environment with the Captain of 
the Port (COTP) San Francisco Bay.
    In this regulation, the Coast Guard is extending the enforcement 
period of the current security zones for the Golden Gate Bridge and the 
San Francisco-Oakland Bay Bridge, San Francisco Bay, California. These 
security zones will encompass all waters, extending from the surface to 
the sea floor, within 25 yards around all piers, abutments, fenders and 
pilings of the two bridges. 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 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 will also 
face 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 as well as 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 proposed 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

    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 and the nearby public. The entities 
most likely to be affected are commercial vessels transiting the main 
ship channel en route to 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

[[Page 55314]]

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. This rule will affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor near the Golden Gate Bridge or the San Francisco-
Oakland Bay Bridge. 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 area 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 (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. 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 analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because we are establishing a security 
zone.
    A final ``Environmental Analysis Check List'' and a ``Categorical 
Exclusion Determination'' is available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping 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; 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. 0170.1.


0
2. Revise paragraph (f) of temporary 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.

* * * * *
    (f) Effective period. This section is effective at 11 a.m. PST on 
February 13, 2003, and will terminate at 11:59 p.m. PST on March 31, 
2004.

    Dated: September 8, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-23771 Filed 9-24-03; 8:45 am]
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