[Federal Register Volume 69, Number 10 (Thursday, January 15, 2004)]
[Proposed Rules]
[Pages 2320-2323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-914]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-009]
RIN 1625-AA00


Security Zones; San Francisco Bay, San Francisco, CA and Oakland 
CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish security zones in areas 
of the San Francisco Bay adjacent to San Francisco International 
Airport and Oakland International Airport. These security zones are 
necessary to ensure public safety and prevent sabotage or terrorist 
acts at these airports. Entry into these security zones would be 
prohibited, unless specifically authorized by the Captain of the Port 
San Francisco Bay, or his designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before March 15, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Branch of the Marine Safety Office San Francisco Bay, Coast Guard 
Island, Alameda, California, 94501. The Waterways Branch of Coast Guard 
Marine Safety Office San Francisco Bay maintains the public docket for 
this rulemaking. Comments and material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, will become part of this docket and will be 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, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Francisco Bay 03-009), indicate the specific section of this document 
to which each comment applies, and give the reason for each comment. 
Please submit all comments and related material in an unbound format, 
no larger than 81/2 by 11 inches, suitable for copying. If you would 
like to know that your submission reached us, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Branch at the address 
under ADDRESSES explaining why one would be beneficial. If we determine 
that one would aid this rulemaking, we will hold one at a time and 
place announced by a separate notice 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 
Iraq have made it prudent for 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.
    On September 21, 2001, we issued a temporary final rule under 
docket COTP San Francisco Bay 01-009, and published that rule in the 
Federal Register (66 FR 54663, Oct. 30, 2001). That rule (codified as 
33 CFR 165.T11-095) established a security zone

[[Page 2321]]

extending 1,800 yards seaward from the Oakland airport shoreline and a 
security zone extending 2,000 yards seaward from the San Francisco 
airport shoreline. Upon further reflection, and after discussion with 
airport officials and members of the public, we issued a new temporary 
rule in title 33 of the Code of Federal Regulations. That rule (67 FR 
5482, Feb. 6, 2002, codified as 33 CFR 165.T11-097) reduced the size of 
the security zones to 1,000 yards seaward from both the Oakland and San 
Francisco airport shorelines.
    We received several written comments about the 1,000-yard security 
zones established by that rule (33 CFR 165.T11-097). Virtually all of 
those comments urged a reduction in size of the security zones in order 
to allow increased public access to San Francisco Bay for fishing, 
windsurfing and similar uses. As a result, we issued a new temporary 
rule (67 FR 44566, July 3, 2002) that further reduced the size of the 
security zones to 200 yards seaward from both the Oakland and San 
Francisco airport shorelines. That rule (codified as 33 CFR 165.T11-
086) expired on December 21, 2002.
    Since the time that the security zones were allowed to expire, 
there have been several security incursions involving personnel gaining 
access to the airports from boats. In addition, the Department of 
Homeland Security in consultation with the Homeland Security Council, 
recently made the decision to raise the national threat level from an 
Elevated to High risk of terrorist attack based on intelligence 
indicating that Al-Qaida is poised to launch terrorist attacks against 
U.S. interests. To address these security concerns and to take steps to 
prevent the catastrophic impact that a terrorist attack against one of 
these airports would have on the public interest, the Coast Guard 
proposes to establish permanent security zones extending approximately 
200 yards seaward around the Oakland and San Francisco airports. These 
security zones are necessary to provide for the safety of individuals 
and facilities within and adjacent to the San Francisco and Oakland 
airports and to ensure that the airports are not used as targets of, or 
platforms for, terrorist attacks. Due to heightened security concerns, 
and the catastrophic impact a terrorist attack on one of these airports 
would have on the public, the transportation system, and surrounding 
areas and communities, security zones are prudent for these airports.

Discussion of Proposed Rule

    In this proposed rule, the Coast Guard would establish two security 
zones within the navigable waters of San Francisco Bay extending 
approximately 200 yards seaward from the shorelines of the Oakland 
International Airport and the San Francisco International Airport. The 
two security zones are designed to provide increased security for the 
airports, while minimizing the impact to vessel traffic, fishing, 
windsurfing and other activities upon San Francisco Bay. Two hundred 
yards from the shoreline is estimated to be an adequate zone size to 
provide increased security for each airport by providing a standoff 
distance for blast and collision, a surveillance and detection 
perimeter, and a margin of response time for security personnel. Buoys 
would be installed to indicate the perimeter of the security zone at 
each airport. This proposed rule, for security reasons, would prohibit 
entry of any vessel or person inside the security zone without specific 
authorization from the Captain of the Port or his designated 
representative.
    Vessels or persons violating this proposed security zone would 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, 
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 would enforce this zone 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 proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. Although this regulation 
restricts access to the zones, the effect of this regulation would not 
be significant because: (i) These security zones are established in an 
area of the San Francisco Bay that is seldom used, (ii) the zones would 
encompass only a small portion of the waterway; (iii) vessels would 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 size of the proposed security zones is the minimum necessary to 
provide adequate protection for the San Francisco International Airport 
and the Oakland International Airport. The entities most likely to be 
affected are small recreational vessel traffic engaged in fishing or 
sightseeing activities.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities for several reasons: These security zones 
would not occupy an area of the San Francisco Bay that is frequently 
transited, small vessel traffic would be able to pass safely around the 
area, and vessels engaged in recreational activities, sightseeing and 
commercial fishing have ample space outside of the security zone to 
engage in these activities. Buoys would be installed to mark the 
perimeter of the security zone at each airport and small entities and 
the maritime public would be advised of these security zones via public 
notice to mariners.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a

[[Page 2322]]

significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that we can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental 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 proposed rule.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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 proposed 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.
    An ``Environmental Analysis Check List'' and a draft ``Categorical 
Exclusion Determination'' (CED) will be available in the docket where 
located under ADDRESSES. Comments on this section will be considered 
before we make the final decision on whether the rule should be 
categorically excluded from further environmental review.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and record 
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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.

    2. Add Sec.  165.1192 to read as follows:


Sec.  165.1192  Security Zones; Waters surrounding San Francisco 
International Airport and Oakland International Airport, San Francisco 
Bay, California.

    (a) Locations. The following areas are security zones:
    (1) San Francisco International Airport Security Zone. This 
security zone includes all waters extending from the surface to the sea 
floor within approximately 200 yards seaward from the shoreline of the 
San Francisco International Airport and encompasses all waters in San 
Francisco Bay within a line connecting the following geographical 
positions--


Latitude                             Longitude
 
37[deg]36'19'' N                     122[deg]22'36'' W
37[deg]36'45'' N                     122[deg]22'18'' W
37[deg]36'26'' N                     122[deg]21'30'' W
37[deg]36'31'' N                     122[deg]21'21'' W
37[deg]36'17'' N                     122[deg]20'45'' W
37[deg]36'37'' N                     122[deg]20'40'' W
37[deg]36'50'' N                     122[deg]21'08'' W
37[deg]37'00'' N                     122[deg]21'12'' W
37[deg]37'21'' N                     122[deg]21'53'' W
37[deg]37'39'' N                     122[deg]21'44'' W
37[deg]37'56'' N                     122[deg]21'51'' W
37[deg]37'50'' N                     122[deg]22'20'' W
37[deg]38'25'' N                     122[deg]22'54'' W
37[deg]38'25'' N                     122[deg]23'02'' W
 


and along the shoreline back to the beginning point.
    (2) Oakland International Airport Security Zone. This security zone 
includes all waters extending from the surface to the sea floor within 
approximately 200 yards seaward from

[[Page 2323]]

the shoreline of the Oakland International Airport and encompasses all 
waters in San Francisco Bay within a line connecting the following 
geographical positions--


Latitude                             Longitude
 
37[deg]43'35'' N                     122[deg]15'00'' W
37[deg]43'40'' N                     122[deg]15'05'' W
37[deg]43'34'' N                     122[deg]15'12'' W
37[deg]43'24'' N                     122[deg]15'11'' W
37[deg]41'54'' N                     122[deg]13'05'' W
37[deg]41'51'' N                     122[deg]12'48'' W
37[deg]41'53'' N                     122[deg]12'44'' W
37[deg]41'35'' N                     122[deg]12'18'' W
37[deg]41'46'' N                     122[deg]12'08'' W
37[deg]42'03'' N                     122[deg]12'34'' W
37[deg]42'08'' N                     122[deg]12'32'' W
37[deg]42'35'' N                     122[deg]12'30'' W
37[deg]42'40'' N                     122[deg]12'06'' W
 



and along the shoreline back to the beginning point.
    (b) Regulations. (1) Under Sec.  165.33, entering, transiting 
through, or anchoring in this zone is prohibited unless authorized by 
the Coast Guard Captain of the Port, San Francisco Bay, or his 
designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 415-399-3547 or on 
VHF-FM 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) Enforcement. All persons and vessels must comply with the 
instructions of the Coast Guard Captain of the Port or the designated 
on-scene patrol personnel. Patrol personnel comprise commissioned, 
warrant, and petty officers of the Coast Guard onboard Coast Guard, 
Coast Guard Auxiliary, local, State, and Federal law enforcement 
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by 
siren, radio, flashing light, or other means, the operator of a vessel 
must proceed as directed.

    Dated: January 5, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-914 Filed 1-14-04; 8:45 am]
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