[Federal Register Volume 69, Number 19 (Thursday, January 29, 2004)]
[Proposed Rules]
[Pages 4267-4269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1858]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-026]
RIN 1625-AA00


Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a security zone 
extending approximately 150 feet into the navigable waters of the 
Oakland Estuary, Alameda, California, surrounding the United States 
Coast Guard Island Pier. This action is necessary to provide for the 
security of the military service members on board vessels moored at the 
pier and the government property associated with these valuable 
national assets. This security zone would prohibit all persons and 
vessels from entering, transiting through, or anchoring within a 
portion of the Oakland Estuary surrounding the Coast Guard Island Pier 
unless authorized by the Captain of the Port (COTP) or his designated 
representative.

DATES: Comments and related material must reach the Coast Guard on or 
before March 29, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California 94501. The Waterways 
Management Branch 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 Waterways Management Branch between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, (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 03-026), 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 they 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 Management 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 
the conflict in 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.
    The threat of maritime attacks is real as evidenced by the attack 
on the USS Cole and the subsequent attack in October 2002 against a 
tank vessel off the coast of Yemen. These threats manifest a 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 aggression continues 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), and Continuation of the National Emergency 
with Respect to Persons Who Commit, Threaten To Commit, Or Support 
Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime 
Administration (MARAD) in Advisory 02-07 advised U.S. shipping 
interests to maintain a heightened status of alert against possible 
terrorist attacks. MARAD more recently issued Advisory 03-05 informing 
operators of maritime interests of increased threat possibilities to 
vessels and facilities and a higher risk of terrorist attack to the 
transportation community in the United States. The ongoing foreign 
hostilities have made it prudent for U.S. ports and waterways 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 proposed rulemaking, to address the 
aforementioned security concerns and to take steps to prevent a 
terrorist attack against these valuable national assets, the Coast 
Guard is proposing to establish a permanent security zone around and 
under the United States Coast Guard Island Pier. This security zone 
would help the Coast Guard to

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prevent vessels or persons from engaging in terrorist actions against 
Coast Guard Cutters that moor at the Coast Guard Island Pier. Due to 
heightened security concerns and the catastrophic impact a terrorist 
attack on a Coast Guard Cutter would have on the crew on board and 
surrounding government property, it is prudent for the Coast Guard to 
establish a security zone for this location.

Discussion of Proposed Rule

    The Coast Guard proposes to establish a fixed security zone around 
and under the Coast Guard Island Pier that encompasses all waters of 
the Oakland Estuary, extending from the surface to the sea floor, 
within approximately 150 feet of the pier. The perimeter of the 
security zone would commence at a point on land approximately 150 feet 
north of the northern end of the Coast Guard Island Pier at latitude 
3746'53.6'' N and longitude 12215'06.1'' 
W; thence out to the edge of the charted channel at latitude 
3746'52.3'' N and longitude 12215'07.9'' 
W; thence along the edge of the charted channel to latitude 
3746'42.2'' N and longitude 12215'50.5'' 
W; thence to a point on land approximately 150 feet south of the 
southern end of the Coast Guard Island Pier at latitude 
3746'52.3'' N and longitude 12215'48.8'' 
W, thence along the shoreline back to the beginning point, latitude 
3746'53.6'' N and longitude 12215'06.1'' 
W.
    This security zone is needed for national security reasons to 
protect Coast Guard Cutters, their crews, the public, transiting 
vessels, and adjacent waterfront facilities from potential subversive 
acts, accidents or other events of a similar nature. Entry into this 
zone would be prohibited unless specifically authorized by the Captain 
of the Port or his designated representative.
    Vessels or persons violating this section 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 proposed rule 
restricts access to the waters encompassed by the security zone, the 
effect of this proposed rule would not be significant because: (i) The 
zone would encompass only a small portion of the waterway; (ii) the 
zone does not encroach into the charted channel; (iii) vessels would be 
able to pass safely around the zone; and (iv) vessels may be allowed to 
enter this zone on a case-by-case basis with permission of the Captain 
of the Port, or his designated representative.
    The size of the proposed zone is the minimum necessary to provide 
adequate protection for Coast Guard Cutters, their crews, other vessels 
operating in the vicinity, adjoining areas and the public. The entities 
most likely to be affected are tug and barge companies transiting the 
Oakland Estuary 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. We expect this proposed rule may affect 
owners and operators of private and commercial vessels, some of which 
may be small entities, transiting the Oakland Estuary. The proposed 
security zone would not have a significant economic impact on a 
substantial number of small entities for several reasons: The zone does 
not extend into the charted channel, 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 zone to engage in these activities. Small entities and the 
maritime public would be advised of this security zone 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 want to assist small 
entities in understanding this proposed rule so that they 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 Lieutenant Doug 
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety 
Office, San Francisco Bay, (510) 437-3073.

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

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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 proposed 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) will be 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. 165.1190 to read as follows:


Sec. 165.1190  Security Zone; San Francisco Bay, Oakland Estuary, 
Alameda, CA.

    (a) Location. The following area is a security zone: All navigable 
waters of the Oakland Estuary, California, from the surface to the sea 
floor, 150 feet into the Oakland Estuary surrounding the Coast Guard 
Island Pier. The perimeter of the security zone would commence at a 
point on land approximately 150 feet north of the northern end of the 
Coast Guard Island Pier at latitude 3746'53.6'' N and 
longitude 12215'06.1'' W; thence out to the edge of the 
charted channel at latitude 3746'52.3'' N and longitude 
12215'07.9'' W; thence along the edge of the charted 
channel to latitude 3746'42.2'' N and longitude 
12215'50.5'' W; thence to a point on land approximately 
150 feet south of the southern end of the Coast Guard Island Pier at 
latitude 3746'52.3'' N and longitude 
12215'48.8'' W, thence along the shoreline back to the 
beginning point, latitude 3746'53.6'' N and longitude 
12215'06.1'' W.
    (b) Regulations. (1) Under Sec. 165.33, entry into or remaining 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. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the security zone by local law enforcement as 
necessary.

    Dated: January 7, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-1858 Filed 1-28-04; 8:45 am]
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