[Federal Register Volume 68, Number 234 (Friday, December 5, 2003)]
[Rules and Regulations]
[Pages 67946-67948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30277]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 03-032]
RIN 1625-AA00


Security Zone: Coronado Bay Bridge, San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary security zones 
encompassing navigable waters 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 and ports from potential subversive actions. Persons and vessels 
are prohibited from entering into, transiting through, loitering, or 
anchoring within these security zones unless authorized by the Captain 
of the Port, or his designated representative.

DATES: This rule is effective from November 7, 2003, until May 1, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket [COTP San Diego 03-032] 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. Also, for the same reasons, 
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. 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).
    As a result, a heightened level of security has been established 
around the Coronado Bridge. Maintaining the structural integrity of the 
Coronado Bridge, which spans San Diego Bay, is very important to the 
local economy and military units within the San Diego Area. 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.

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 this bridge would have on the 
public,

[[Page 67947]]

the transportation system and surrounding areas and communities, 
security zones are prudent for these structures.

Discussion of Rule

    In this temporary rule, the Coast Guard is establishing fixed 
security zones encompassing, from the surface to the sea floor, 
navigable waters 25 yards 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, criminal penalties (including imprisonment up to 6 years), 
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.
    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 portions of the 
navigable waterways around the bridge, 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, 
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. This rule will affect the following entities, some of which 
may be small entities: the owners or operators of 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. 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 (Pub. L. 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 Lieutenant Commander Rick 
Sorrell, USCG, c/o U.S. Coast Guard Captain of the Port, telephone 
(619) 683-6495 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

[[Page 67948]]

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.lD, 
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 final 
``Categorical Exclusion Determination'' will be 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, 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.T11-030 to read as follows:


Sec.  165.T11-030  Security Zone: Coronado Bay Bridge, San Diego, CA.

    (a) Location. All navigable waters, extending from the surface to 
the sea floor, 25 yards around all piers, abutments, fenders and 
pilings of the Coronado Bay Bridge spanning 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) Effective period. This section is effective from November 7, 
2003, until May 1, 2004. 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 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.
    (d) Authority. In addition to 33 U.S.C. 1231, the authority for 
this section includes 33 U.S.C. 1226.

    Dated: November 4, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 03-30277 Filed 12-4-03; 8:45 am]
BILLING CODE 4910-15-P