[Federal Register Volume 68, Number 223 (Wednesday, November 19, 2003)]
[Rules and Regulations]
[Pages 65177-65179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28810]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-033]
RIN 1625-AA00


Security Zone: Pacific Ocean, San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a security zone off the coast 
of Coronado and Imperial Beach in San Diego, California in support of 
naval military operations for the purposes of national security. This 
security zone is necessary to protect the vessels and crew involved in 
these military operations. 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: This rule is effective from 8 a.m. (p.s.t.) on November 10, 
2003, until 11:59 p.m. (p.s.t.) on November 21, 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 03-033] 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) 683-6495

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), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Any delay in implementing this 
rule would be contrary to the public interest since immediate action is 
necessary to protect the vessels and crew involved in this operation.
    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.
    Due to complex planning and national security reasons, information 
regarding the precise location and date of the event necessitating 
promulgation of this security zone and other logistical details 
surrounding the event were not provided until a date fewer than 30 days 
prior to the event. Due to the sensitive nature of the operations 
involved, it was necessary for this information to be finalized at a 
later date.

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 to U.S. ports to be on a higher state of 
alert because Al-Qaeda and other 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 naval vessels and personnel would have 
on the public interest, the Coast Guard is establishing a security zone 
off the coast of San Diego.
    The security zone consists of the navigable waters of the Pacific 
Ocean off San Diego, California in the areas known locally as Coronado 
and Imperial Beach. The exact coordinates can be found in the 
regulatory text.
    This rule is effective from 8 a.m. (p.s.t.) on November 10, 2003, 
until 11:59 p.m. (p.s.t.) on November 21, 2003.
    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.

Discussion of Rule

    The United States Navy will be conducting military operations on 
the navigable waters of the Pacific Ocean off the coast of San Diego, 
California. Persons and vessels are prohibited from entering into this 
security zone unless authorized by the Captain of the Port or his 
designated representative. Each person and vessel in a security zone 
shall obey any direction or order of the COTP. The COTP may remove any 
person, vessel, article, or thing from a security zone. No person may 
board, or take or place any article or thing on board, any vessel in a 
security zone without the permission of the COTP.
    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

[[Page 65178]]

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.
    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).
    Due to national security interests, the implementation of this 
security zone is necessary for the security of the Navy and its vessels 
and crews. The size of the zone is the minimum necessary to provide for 
the security of the vessels involved in the military operations. 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 the Naval vessels. Accordingly, full regulatory 
evaluation under 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 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 zone 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 zone 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 
this security zone 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 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.

[[Page 65179]]

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.
    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. 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. 0170.1.

0
2. Add new Sec.  165.T11-031 to read as follows:


Sec.  165.T11-031  Security Zone: Pacific Ocean, San Diego, CA.

    (a) Location. The navigable waters encompassed by a line connecting 
the following points: starting from a point on shore at 32[deg]38.88' 
N, 117[deg]09.02' W, then west to point 32[deg]38.88' N, 117[deg]12.2' 
W, then southwest to point 32[deg]36.70' N, 117[deg]13.83' W, then 
south to point 32[deg]32.88' N, 117[deg]13.83' W, then east along 
latitude 32[deg]32.88' N to shoreline.
    (b) Enforcement period. This section will be enforced from 8 a.m. 
(P.s.t.) on November 10, 2003, until 11:59 p.m. (P.s.t.) on November 
21, 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.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.33 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 zone 
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 via VHF-FM channel 16.

    Dated: November 7, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 03-28810 Filed 11-18-03; 8:45 am]
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