[Federal Register Volume 69, Number 11 (Friday, January 16, 2004)]
[Proposed Rules]
[Pages 2554-2557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1058]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish permanent security zones

[[Page 2555]]

encompassing the navigable waters of San Diego Bay within 25 yards of 
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 would be 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: Comments and related material must reach the Coast Guard on or 
before March 16, 2004.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office San Diego, 2716 North Harbor Drive, San Diego, CA 
92101-1064. The Port Operations Department 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 the Marine Safety Office San Diego, Port 
Operations Department between 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Todd Taylor, USCG, 
c/o U.S. Coast Guard Captain of the Port, telephone (619) 683-6495.

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 (03-032), 
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 8\1/
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 Marine Safety Office San Diego, 
Port Operations Department, 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 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 (PAWSA), 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 proposes to establish security zones 
around the Coronado Bridge. These security zones would 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 transportation system and surrounding areas and 
communities, security zones are prudent for these structures.
    This notice of proposed rulemaking is intended to notify the public 
that the Coast Guard intends to create permanent security zones around 
the Coronado Bay Bridge.

Discussion of Proposed Rule

    In this proposed rule, the Coast Guard would establish 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 would be prohibited, unless doing so would be necessary for safe 
navigation or you have the permission of the Captain of the Port. 
Vessels and people would 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 would 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 could be punishable by 
civil penalties, criminal penalties (including imprisonment up to 6 
years), and in rem liability against the offending vessel. Any person 
who would violate this proposed regulation using a dangerous weapon or 
who would engage in conduct that causes bodily injury or fear of 
imminent bodily injury to any officer authorized to enforce this 
regulation, would also face imprisonment up to 12 years.
    Coast Guard personnel would 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 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 the proposed rule would 
restrict access to portions of the navigable waterways around the 
bridge, the effect of this regulation would not be significant because: 
(i) The zones would encompass only a small portion of the waterway; 
(ii) Vessels would be able to pass safely around the zones; and (iii) 
Vessels would 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 proposed zones are the minimum necessary to 
provide adequate protection for the bridges, vessels operating in the 
vicinity, their

[[Page 2556]]

crew 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 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. The security zones would not have a 
significant economic impact on a substantial number of small entities 
for several reasons: small vessel traffic could pass safely around the 
security zones and vessels engaged in recreational activities, 
sightseeing and commercial fishing would have ample space outside of 
the security zones to engage in these activities. 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 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 (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.

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

    Arule 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 
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.

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.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) are available in the 
docket where indicated 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), Reporting and 
recordkeeping 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.  165.1110 to read as follows:

[[Page 2557]]

Sec.  165.1110  Security Zone: Coronado Bay Bridge, San Diego, CA.

    (a) Location. All navigable waters of San Diego Bay, from the 
surface to the sea floor, within 25 yards of all piers, abutments, 
fenders and pilings of the Coronado Bay Bridge. These security zones 
will not restrict the main navigational channel nor will it restrict 
vessels from transiting through the channel.
    (b) Regulations. (1) Under Sec.  165.33, entry into, transit 
through, loitering, or anchoring within any of these security zones by 
all persons and vessels is prohibited, unless authorized by the Captain 
of the Port, or his designated representative. Mariners seeking 
permission to transit through a 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.
    (2) Vessels may enter a security zone if it is necessary for safe 
navigation and circumstances do not allow sufficient time to obtain 
permission from the Captain of the Port.

    Dated: December 16, 2003.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 04-1058 Filed 1-15-04; 8:45 am]
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